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“Ruth Bader Ginsburg; Eight Is Not Enough”: An Equal Division Is Essentially The Same As A Denial Of Review

Last month, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), feeling pressure over his role in an unprecedented Supreme Court blockade, wrote an op-ed in which he insisted the whole mess is unimportant. The “sky won’t fall” if the Supreme Court remains deadlocked for a year and a half – eight justices is plenty – so the Republicans’ unprecedented scheme isn’t worth all the fuss.

Actual justices on the high court appear to feel differently. Justice Ruth Bader Ginsburg acknowledged publicly yesterday that the institution she serves is, in fact, being hurt by having eight justices instead of nine. The Washington Post reported:

The Supreme Court has deadlocked 4 to 4 in several cases since Justice Antonin Scalia’s death in February. Ginsburg told judges at a conference in New York that the situation is unfortunate because it essentially means important issues are being denied Supreme Court review, according to a copy of her prepared remarks.

“That means no opinions and no precedential value; an equal division is essentially the same as a denial of review,” Ginsburg said.

She added, “Eight, as you know, is not a good number for a multi-member court.”

Ginsburg is hardly the only one who’s noticed. Slate’s Dahlia Lithwick noted last week that the Supreme Court can pretend that “it can manage just fine with eight justices,” but the fact remains that the institution is struggling to do its job.

Nobody on the court can say: “Please give us a ninth justice so we can get back to work.” That sounds like a plea for a Justice Merrick Garland. That is why it’s left to former Justice John Paul Stevens to say it for them. Even if all eight justices were to agree that between being unable to take any cases for next term, and being unable to decide major cases this term, things are not getting done at the court.

The same week, the editorial board of the New York Times added, “Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved…. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.”

By all appearances, the Senate’s Republican majority doesn’t care – according to Sen. Orrin Hatch (R-Utah), it’s somehow fair to treat Merrick Garland unfairly – but they should.

 

By: Steve Benen, The Maddow Blog, May 27, 2016

May 28, 2016 Posted by | Chuck Grassley, Ruth Bader Ginsburg, Senate Republicans | , , , , , , | 1 Comment

“A Matter Of Urgent National Interest”: Senate Republicans Get Back to Work…Grilling Facebook

Oh, this is rich.

The US Senate Commerce Committee—which has jurisdiction over media issues, consumer protection issues, and internet communication—has sent a letter to Mark Zuckerberg requesting answers to questions it has on its trending topics section. The letter comes after Gizmodo on Monday reported on allegations by one former news curator, who worked for Facebook as a contractor, that the curation team routinely suppressed or blacklisted topics of interest to conservatives. That report also included allegations from several former curators that they used an “injection tool” to add or bump stories onto the trending module.

If I was Zuckerberg, I’d be tempted to consider some spicy language with which to suggest what Sen. John Thune and his Republican friends on the Commerce Committee might consider doing with their questions. Either that or tell them that I’d answer the questions as soon as the same ones were posed to Fox News. I certainly wouldn’t be able to stop myself from pointing out that it was Republicans who insisted on the revocation of the Fairness Doctrine.

It is truly amazing to watch this Party that constantly extols the virtue of “freedom” and their love of the Constitution (First Amendment anyone?) feign outrage that social media isn’t under their control.

Then there’s this:

A spokesman for Senate Minority Leader Harry Reid (D-Nev.) slammed Thune for launching the probe.

“The Republican Senate refuses to hold hearings on Judge Garland, refuses to fund the President’s request for Zika aid and takes the most days off of any Senate since 1956, but thinks Facebook hearings are a matter of urgent national interest,” Adam Jentleson wrote in an email.

“The taxpayers who pay Republican senators’ salaries probably want their money back.”

In 2014, when Majority Leader Mitch McConnell promised that he’d get the Senate working harder again, I don’t think this is what voters had in mind.

 

By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, May 10, 2016

May 11, 2016 Posted by | Facebook, John Thune, Senate Republicans | , , , , , , , , | 1 Comment

“Not Even Their Own Voters”: Republican Blockade Failing To Persuade American Mainstream

The Washington Post observed this week that Democrats “are winning the Supreme Court fight over Merrick Garland. Big time.” Dems aren’t exactly succeeding in convincing Republicans to end their unprecedented Supreme Court blockade, but the party has apparently fared pretty well in the court of popular opinion.

The NBC News/Wall Street Journal poll started asking an important question soon after Justice Antonin Scalia passed away in February:

“Recently, a Supreme Court Justice passed away leaving a vacancy on the court. President Obama has nominated a new person to serve on the U.S. Supreme Court. Would you prefer the U.S. Senate vote this year on the replacement nominated by President Obama or leave the position vacant and wait to vote next year on the replacement nominated by the new president or do you not have an opinion one way or the other?”

When the question went to the public just a few days after Scalia’s death, Americans were closely divided: 43% said they’d like to see the Senate vote this year on the Supreme Court’s vacancy, while 42% said they’d prefer to see the vacancy filled next year by a new president.

A month later, in March, the numbers shifted a bit in the Democrats’ favor. This month, in a poll that was in the field last week, they shifted even more. Now, a 52% majority of Americans want a vote this year, while 30% want to leave the seat vacant until next year.

What was a one-point advantage for the White House’s position in February is a 22-point advantage now. A closer look suggests even Republican voters are starting to shift away from their own party’s position.

At least for now, there’s no evidence to suggest Senate Republicans care at all about public opinion. GOP leaders very likely expected their blockage, which has no precedent in the American tradition, would be unpopular, but they decided to go with it anyway. I doubt poll results like these shock anyone.

But if you’re one of the vulnerable Senate Republican incumbents worried about your re-election prospects, and you were counting on the vaunted GOP Messaging Machine to win over the American mainstream on your party’s Supreme Court gambit, the latest evidence serves as a reminder: Republicans aren’t persuading anyone, not even their own voters.

That may not be enough to convince GOP senators to act responsibly towards a compromise nominee, but it should be enough to make some senators very nervous.

 

By: Steve Benen, The Maddow Blog, April 21, 2016

April 22, 2016 Posted by | Public Opinion, Senate Republicans, U. S. Supreme Court | , , , , , , | 1 Comment

“Force The Senate To Do Its Job”: Obama Can Appoint Merrick Garland To The Supreme Court If The Senate Does Nothing

On Nov. 12, 1975, while I was serving as a clerk to Supreme Court Justice Thurgood Marshall, Justice William O. Douglas resigned. On Nov. 28, President Gerald R. Ford nominated John Paul Stevens for the vacant seat. Nineteen days after receiving the nomination, the Senate voted 98 to 0 to confirm the president’s choice. Two days later, I had the pleasure of seeing Ford present Stevens to the court for his swearing-in. The business of the court continued unabated. There were no 4-to-4 decisions that term.

Today, the system seems to be broken. Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior. Now, the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.

The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.

 

By: Gregory L. Diskant, Senior Partner at the law firm of Patterson Belknap Webb & Tyler, Member of the National Governing Board of Common Cause; Opinion Pages, The Washington Post, April8, 2016

April 10, 2016 Posted by | Merrick Garland, Senate Republicans, U. S. Supreme Court Nominees | , , , , , , | 4 Comments

“Illogical And Irresponsible”: GOP Response To Supreme Court Nomination Makes No Sense And Could Have Big Consequences

We are just beginning to see the consequences of the Senate Republicans’ refusal to consider President Barack Obama’s nominee for the Supreme Court. On Tuesday, the court deadlocked 4-4 on a case involving public sector unions. The tied decision left current law in place, a victory for the unions, but not necessarily a victory for our system of government.

The decision is the second deadlock to come out of the court since the death of Justice Antonin Scalia in February. Last week, the court was evenly split on a case regarding possible bank discrimination.

How long can an evenly split court continue to function? Even in the face of the recent deadlocked decisions, Senate Republicans still refuse to consider the nomination of Merrick Garland for the seat left vacant by Scalia. Their refusal to move forward promises to render an entire branch of our government completely moot.

In a piece for Politico this week, University of Michigan Law School Professor Richard Primus sounds the alarm about the consequences of an incomplete court. He wrote: “A court with eight justices will often deadlock in contested cases, and therefore fail to execute the court’s major function: providing resolution on constitutional issues where the lower courts disagree.” A court that can’t function effectively is dangerous to the delicate balance of power our democracy is built upon. It disables an entire branch of government, removing an important check on the other two. Republicans’ refusal to consider Obama’s nominee means the U.S. Senate is failing in its duty to ensure the continuity of our government and move the country forward. They should reverse course immediately.

Consideration of the nominee does not equate to confirmation. If, after thoroughly vetting Garland, Senate Republicans still find him objectionable, they can vote him down and invite Obama to submit another nominee. This process can continue until both sides arrive at a mutually agreeable result. But to insist that because Obama is in his last year of office the province of filling the Supreme Court vacancy belongs to someone else is irresponsible.

Following that line of thought, all of the House and one-third of the Senate should refrain from voting on anything during election years in case their potential successors might decide something differently. Office holders do not vacate their powers and responsibilities until they are out of office. Obama is still the president. He can take us to war, sign bills into law and nominate Supreme Court Justices. The logic behind the Senate Republicans’ actions is flawed and can have far-reaching consequences.

For over 200 years now, this country has been blessed with peaceful transitions of power that have ensured the survival of our democracy. Administrations have come and gone and political parties have won and lost without creating the instability that is rampant in other parts of the world. This has happened, for the most part, because everyone involved has respected the system enough to let it work. Senate Republicans should let the system work and consider Obama’s choice for the Supreme Court. Any other course of action starts to put our stability at risk.

 

By: Cary Gibson, Thomas Jefferson Street Blog, U. S. News and World Report, April 1, 2016

April 3, 2016 Posted by | Democracy, Senate Republicans, U. S. Constitution, U. S. Supreme Court Nominees | , , , , , | 2 Comments

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