IMMEDIATE RELEASE 15 Feb. 2016 10
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column, Founded 1932
It’s in Kennedy’s hands
By Douglas Cohn and Eleanor Clift
WASHINGTON – When a case is heard in a local court, plaintiffs and defendants alike assume they are being heard by an impartial judge, but the likelihood of partiality increases with each court level right up to the Supreme Court, where impartiality is a rarity. This is so because so many of that court’s decisions are based upon the U.S. Constitution, a political document.
In such a politicized environment, the court’s liberal-conservative divide is transparent, which is why the passing of conservative Associate Justice Antonin Scalia is creating such a stir, even a constitutional crisis, coming as it has in an election year when Republicans, who hold a 54-46 advantage over Democrats in the Senate, are openly hostile toward President Barack Obama, a Democrat.
This represents a continuation of national gridlock, with Republican Senate leaders informing the president, “You have a constitutional right to nominate a Supreme Court justice, and we have a right to ignore the nomination.” But this stance is fraught with problems, starting with the reduction of the court from nine to eight members who are, in theory, evenly split. If they remain true partisans, votes on upcoming cases will come in at 4-4. And a tie vote means the case being appealed from a lower court will stand as decided by that lower court even though it would not be applicable nationwide.
There is a solution, and it is other than the following options being touted:
- The president nominates a partisan Democratic-leaning judge, who will not even receive a senatorial hearing let alone a confirmation.
- The president nominates a blank slate, someone whose history does not betray a bias, but once again, a Republican-controlled Senate will not take a chance on another Souter-like stealth justice. Retired Justice David Souter, who was appointed by Republican Pres. George H. W. Bush, proved to be other than an ally to conservative dogma.
- The president makes a recess appointment that will stand until the new Senate is sworn in next January. With the Senate in the midst of a President’s Day recess, this is doable, but the president said he will not do it, and with good reason. Such a justice will have almost a year to establish a track record. If it is conservative, Obama will regret it. If it is liberal, a Republican-controlled Senate will reject it come January, unless, of course, Democrats regain control in the November election. Too many “ifs.”
In the midst of the undemocratic din, one man holds the solution. The fact is there remain only three conservative justices on the court, Chief Justice John Roberts and Associate Justices Clarence Thomas and Samuel Alito. They are often joined by one unreliable conservative, Associate Justice Anthony Kennedy. Often called a “swing justice,” Kennedy has most often swung right, but the opposite direction just enough to justify his label. In other words, Justice Kennedy behaves more like an impartial lower-court judge.
Now Kennedy cannot stand up and announce a bias favoring a political philosophy. But he can announce his independence. Such an announcement would be code for his willingness to side with the court’s liberals, and, as such, force Republican senators to reevaluate their “dead-on-arrival” stance toward an Obama nominee. And what type of nominee would that be? It most likely would be another Kennedy, a person committed to the law, not a party or an orthodoxy because that is the only type of nominee who could pass senatorial muster.
So it lies within Kennedy’s hands to defuse the crisis and bring good judgment and decorum back into the process.
Douglas Cohn’s new book, “The President’s First Year: None Were Prepared, Some Never Learned – Why the Only School for Presidents Is the Presidency,” is available in book stores.
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END WASHINGTON MERRY-GO-ROUND