I write this blog from the beachside community of Manori, a northern suburb of Mumbai, India. There couldn’t be a more remote spot from which to contemplate US politics. But the news about the recent passing of Associate Justice Antonin (Nino) Scalia who sat on the Supreme Court of the United States (SCOTUS) for 30 years – ricochets with a deafening sound. Before going further, it is worth noting that Scalia’s time on the court, though not approved of by everyone, undoubtedly sharpened everyone’s pencils. His contribution to the law, as it stands, whether eagerly defended or bitterly dissented shaped a dialogue in the nation’s highest court that cannot be accused of apathy. He leaves close friends on the court, all claiming him as an inspiration, all claiming to be made better jurists by dint of his contrary argument and all confirming his complete devotion to the Constitution. In choosing his successor, it is not that battle lines should instantly be drawn up between rabid Republicans and lily-livered Democrats. The tone of the conversation coming into the next US election is a lot more important than that.
Let’s dispense with a small matter. There is an odd and – to be blunt – ‘remedial’ question going around. Should President Barack Obama have the right to nominate a new associate justice or should this nomination process be held over for the next president? Our Constitution is clear. Textual originalist Justice Scalia would have been the first to point it out.
Constitution of the United States – Article 2, Section 2
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
This process has always been in the hands of the President of the United States – a power vested in him by the Constitution – so barring an amendment that changes the supreme law of the land, he must first and foremost discharge his constitutional duty followed closely by the Senate doing theirs. Secondly, the people’s mandate, that some say is missing, is exercised every four years. Constitutionally, and for a very good reason, ‘we the people’ do not have a hand in selecting Supreme Court Justices, otherwise they would be on the ballot and their reverence for the law would shift to a reverence for the worst kind of base politics and we would lose our tri-pillared government within a single administration. The people’s current mandate is the five million vote margin of re-election in 2012 which confers the full powers of the presidency on Barack Obama until 12:00 noon on the 20th January, 2017. Dereliction of duty is not what the Senate should be touting in their special role of ‘advice and consent’ especially since they stand in their lofty place having sworn to uphold the Constitution.
Thirdly, we are at a strange and uncomfortable divisiveness which holds this president to a different standard. There is much that President Obama may have to answer for, but like it or not he holds the fullness of the office until constitutionally relieved of it. Later this year, or even in January next year, a good 11 months from now, he has the power to order US Armed Forces into battle – but apparently he cannot nominate a justice to the Supreme Court. This is, of course, complete nonsense. There is another falsehood in circulation about the supposed bar on appointing justices in an election year. 14 Justices including early figures like Justice Samuel Chase and Chief Justice Taney were nominated and swiftly confirmed in election years. More recently legal giants Justice Louis Brandeis (1916) and Justice Benjamin Cardozo (1932). In November 1987, Ronald Reagan nominated Justice Anthony Kennedy to the Court – who was unanimously confirmed by a Democratic congress and took his seat in 1988. No one would have dared suggest that President Reagan was to hand that nomination process over to his successor, because he was a ‘lame duck’ incumbent. But, easy to see, and even easier to remember for some of us, party politics was at that time in the hands of statesmen, not the hacks that control it now.
On average it takes 25 days from nomination to vetting, voting and confirmation. At certain times it has drawn out to over 100 days. From March this year, President Obama will have an ample 324 days remaining in office. The path of cooperation or the path of obstruction will be very evident. A vacancy on the SCOTUS is a crucially important position to fill. 4-4 decisions at the Supreme Court mean that lower court decisions have the full force of law – and those decisions that are in conflict with each other remain unclarified and allow two different circuit opinions to provide uncertain justice in two different parts of the country. That seriously effects the daily lives of American citizens. At least four major cases are currently pending decision including topics like affirmative action; contraception; unions; and voting rights. They are likely to have been decided by a 5-4 majority. These cases will now cast a 4-4 grey area of jurisprudence – until they can be conclusively decided at a later stage, if in fact they are taken up in the same way. The final legal remedy applied by a full Supreme Court is of paramount importance to the fabric of the nation.
Our Constitutional framework, ensures that time and again there is a peaceful transition of power and its construction of three co-equal branches of government is a remarkable contribution to the governance of men. The strength of our Constitution and therefore the stability of our future, depends on understanding it. The checks and balances of our government have often played out – and every branch of government, including the Court, has had its shining moments and also conversely its disgracing moments. We rely on the cycle nature of men and their dreams to reach great heights. We also rely on the very same cycle to ensure that no despotic, crazed and unlawful means remain beyond the natural wheel of time.
When Chief Justice John Marshall handed down the opinion in the epic case Marbury vs. Madison, he initiated a long held, long tested and now incontrovertible tenet of US Government that stretches back to that moment in 1803. “It is emphatically the province and duty of the Judicial Department to say what the law is.” In this seminal sentence the power to review, and if necessary strike down, laws as being unconstitutional gave the Supreme Court its ‘third and equal branch of government’ status. It was a shining moment for the court at a time that politics between opposing factions might have torn the nascent country apart. A politics that was almost as bitter as it is now. Political ground shifts loyalty continually and without warning, like quicksand. The Federalists – the party of George Washington and John Adams – were in opposition to the Jeffersonian new Republican-Democrats (sic). Later the Federalists would morph into the GOP and the new Democrats would drop their Republican styling. By 1857 the Marbury and Marshall families were joined by marriage and since Chief Justice John Marshall was ‘second cousin once removed’ to President Jefferson -the viciously opposed ‘dramatis personae’ in this important moment in history became family members. Famous patriot Francis Scott Key’s uncle Philip Barton Key was a monarchist and fought alongside the British as a captain with the Maryland Loyalist Battalion in the Revolutionary war.
Don’t rely on loyalties being the same through time. My point is this.
It’s not what your party is called, it is what people do that should be the reason for your vote.
To the detriment of the Southern Democrats who took up against the Republicans in the Civil War, – it was the Republican party under President Lincoln that gave us Amendments 13, 14 and 15 – allowing for a new and emancipated nation under law with freedom and the pursuit of happiness for everyone, unfettered by their race or origins. The politics of the Democrat Confederacy is a blight on American history by any standard. The words of the fourteenth amendment that talk of ‘naturalized’ citizens – though intended to codify the new rights of emancipated slaves – ring through history to the present day for countless immigrants who enter the United States in the same ‘naturalization’ process and quite rightly expect ‘due process’ and the ‘equal protection’ of the law.
To the detriment of the Supreme Court, in the infamous Dred Scott case, the Justices had proved themselves, with the exception of Justice Curtis’ whose dissent along with one other justice is the only presence of sanity- to be unfair arbiters of emancipation or the winning morality of the Civil War. The line “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” was included in amendment language for the first time with these great ‘civil liberty’ statutes and deemed necessary precisely because Congress and the President together were the true heroes and the Court could not be trusted while it upheld its worst decision. Chief Justice Charles Evans Hughes referred to the majority decision in Dred Scott as a ‘self-inflicted wound’ that almost destroyed the court.
To the detriment of the GOP today, and unfortunately quite publically documented, it seems that certain people would be happier to repeal amendments 13, 14 and 15. Those same persons have singularly hated the tenure of an African American Commander-in-Chief and would prefer to champion as Nino Scalia did, a segregated, “some are more equal than others” platform. (I cite oral arguments in Fisher vs. University of Texas) The “tax and spend” Democrats of the 1970’s and 80’s have become the Republican centrists they used to fight – and some Republicans have gone off into completely uncharted territory, though it is difficult to say in what direction. Many Republicans –perhaps a ‘silenced majority’- yearn for the days when any one of their number were visionary statesmen and could accomplish the good business of the nation. We all remember don’t we? Bob Dole, Richard Lugar, James Baker, – less public but extraordinarily capable figures like Mike Armacost – and many other Republicans not scared of their own shadow – not straightjacketed by the ridiculously low caliber myopia of the margins in the party. These were statesmen conscious of putting America first. I put forward the following statement for which there is ample evidence. Today, one could campaign as a Democratic candidate for the Presidency of the United States and win the office, using only the words of Ronald Reagan. His speeches as Governor of California are worth a read. So having witnessed these changes, not in books but in everyday policy that has changed lives, it is a difficult choice for those who find themselves in the middle.
Those who favor free and unfettered entrepreneurship coupled with sensible regulations that recognize looming threats like melting financial systems or melting polar icecaps. Or who favor the promises of the first amendment but at the same time don’t deny advances in anthropology, astrophysics, cosmology and sound science that will allow us to continue to exist. Those who see some merit in the language of the second amendment (discussed in my blog July 2015) but are not so crazy as to suggest that ‘a gun in every hand will reduce gun deaths or violence’. Or those who, above all, see the real need for fiscal and financial conservatism, but are socially liberal and don’t feel the need to judge, much less condemn, their neighbors by the standards of archaic holy books authored by mortal men in the first millennium. The Constitution allows us to experience it all in the full richness of life. But politically we are somehow forced into false choices – ones that do not allow complexity, character or integrity – the hallmarks of fine judgement. We are either intellectual or stupid, liberal or conservative, pro-war or peacenik, fiscally conservative or communist, always just one or the other – and polarizing forces are how one wins elections. It also means that we are not allowed to vote except in the cookie cutter, ‘one size fits all’ jargon of modern American politics that is as uninformed and useless as it is reductionist claptrap. Did the founding fathers expect that when the American electorate went to the polls that they would leave their brains and memories behind – to be beaten into submission by attack ads and ‘two-bit’ pronouncements that arouse everyone’s baser instincts? It doesn’t have to be so – and it is we that allow it.
It is not important to see before you, only what your party machine tells you. It is important – Republican or Democrat – or anyone in between – to actually see what is happening. The scaremongering that suggests this election will be the most consequential is a tactic to make people rush to a decision. Don’t fall for it. The stakes in US elections are always high – just as they were in 1860 or 1960 or 2000. When choosing a President and vetting all the various qualifications that come with the office, one must also ask a simple question. In that moment, before he/she speaks in public – especially as our standard bearer and emissary to the rest of the world – ask yourself, “Am I proud to be an American?” Once he/she has finished speaking, ask yourself the same question again. There’s your best candidate. Almost all the rest – thank God – is in the machinery of the Constitution and our safety depends on our unwavering resolve to keep it sacred, defend it and preserve its checks and balances.
It’s not what your party is called, – it is what people do that should be the reason for your vote.
…and above all, this November, you should vote!