President Obama has announced that despite threats from Republican leaders, he plans to nominate someone to fill the Supreme Court vacancy created by the death of Antonin Scalia. I hope he ignores the advice of Vice President Joe Biden, who wants him to select someone who isn’t staunchly liberal.
Biden said, “…the idea that we’re going to go in and decide we’re going to pick an, I don’t know, a new Justice Brennan, I don’t think that’s going to happen. That’s not how the system works.”
Won’t stand up
That’s not how it works for Democrats. And it doesn’t work because they are such wimps when it comes to standing up for their beliefs.
You have never heard nor will you ever hear a Republican talk about not nominating any judge because he or she is too conservative. In fact, they have made a point of putting right-wing reactionaries on the court: Clarence Thomas, John G. Roberts, Samuel Alito, Anthony M. Kennedy and, of course, Antonin Scalia.
Yet, Democrats – and only Democrats – feel compelled to appoint less doctrinaire justices in order to appease Republicans who oppose them at every turn. That’s a one-way street to nowhere.
Conservatives have created a vast network through The Federalist Society “dedicated to reforming the current legal order.” From establishing chapters on every law school campus, to arranging internships with like-minded lawyers, and screening potential judges for Republican presidents, The Federalist Society is leaving its right-wing imprint on the courts.
To their disappointment, David Souter was nominated to the Supreme Court by President George H.W. Bush, but ended up siding with liberals on the bench. “No More Souters” became the boisterous chant of disappointed conservatives.
Though they are arch-conservatives, Roberts and Kennedy have been sharply criticized by conservatives for certain votes. Roberts provided the deciding vote to uphold the legality of the Affordable Care Act and Kennedy voted to legalize same-sex marriage.
The Washington Times noted in September, “As a precursor to the upcoming Republican presidential debate, a conservative group is starting a campaign push to get the candidates on the record about how they would approach Supreme Court nominations.
“’Demand justices with a proven record of upholding the constitution. We can’t afford more surprises,’ a narrator says in the first advertisement by the Judicial Crisis Network, which features the faces of Justices John Roberts and Anthony Kennedy and retired Justice David Souter, all Republican picks to the court.”
Selecting a progressive to replace Scalia would shift the balance of the court, which is now tilted 5-4 in favor of conservatives. And the next president may get two or more additional appointments.
All of the remaining Republican candidates for president are contending that President Obama should not appoint a replacement for Scalia, which would leave his seat open for a minimum of 11 months. And, according to FactCheck.org, critics of Obama are distorting the history of the Supreme Court to make their argument.
“Let’s take Cruz’s statement first,” FactCheck.org states. “He’s right – or close to right – that it has been 80 years since a Supreme Court nominee was ‘nominated and confirmed in an election year.’
It has actually been 76 years. But here’s the missing context: There have been only six outstanding court vacancies in an election year since 1900, and in every case the vacancy was filled.”
Rubio said on “Face the Nation” (Feb. 14): “…There’s been precedent established over 80 years that, in the last year, especially in the last 11 months, you do not have a lame-duck president make a lifetime appointment to the highest court on the land.”
FactCheck.org stated, “In fact, this is the first time in at least 116 years that a Supreme Court vacancy occurred in a lame-duck president’s final year in office. The chart above also shows there was only one lame-duck president – Reagan – who had a vacancy to fill, but that vacancy occurred when Reagan had more than a year in office. Rubio said the precedent extends only to a president’s last year ‘especially in the last 11 months,’ which would only cover Obama.”
Republican front-runner Donald Trump, who has dismissed Roberts as “disgraceful” and a “disappointment,” named Clarence Thomas is his favorite Supreme Court justice.
Critics notwithstanding, President Obama plans to nominate a judge to succeed Scalia. It would be the height of cowardice to shy away from nominating a progressive to the nation’s highest court.
George E. Curry is president and CEO of George Curry Media, LLC. Contact him via georgecurry.com.