IMMEDIATE RELEASE 28 January 2022WASHINGTON MERRY-GO-ROUNDToday’s Events in Historical PerspectiveAmerica’s Longest-Running Column Founded 1932The system doesn’t workBy Douglas Cohn and Eleanor Clift WASHINGTON — He did not want to retire, but Justice Stephen Breyer had no choice. If he didn’t say he was stepping down, it is possible his Supreme Court seat could go to a conservative jurist. Still, it was a hard call for Breyer who gives eloquent speeches about the Court losing credibility if it is seen as a political body. He did not want politics to force his hand. In other words, Breyer could remain true to the theory or true to the reality. The reality is that the Constitution is flawed, and among the flaws are the clauses or lack of clauses concerning the Supreme Court. Remedies are called for such as term limits, an upper age limit, and potentially even a younger age limit (as is the case for representatives, senators, and presidents), as politicians seek to extend their grip on the Court with youthful candidates. Separate from the Constitution, a congressional vote could expand the Court from 9 to 13 or more justices which would allow broader representation. This was done during the 19th Century, but when FDR tried to increase Court membership to 15 in 1937, he was accused of court-packing, and the attempt failed. In the meantime, winning confirmation for a left of center pick while the Democrats still have a tenuous hold on the Senate is the only realistic option for Biden. The politics are obvious. Senate Minority Leader Mitch McConnell, R-Ky., made it clear that if Republicans gain control of the Senate in the November midterms, they will block any Supreme Court appointments President Biden attempts to make. It was not always thus. In the absence of constitutional verbiage, traditions reigned. President Ronald Reagan’s 1980 campaign promise to nominate a woman to the Supreme Court was seen as radical and revolutionary. Yet, Sandra Day O’Connor was confirmed unanimously by the Senate in 1981 despite the Democrats ability to kill the nomination through the filibuster, which – unlike today – was then in effect. In 1991, Democrats were in control of the Senate, and then-Senator Joe Biden, D-Del., was the chairman of the powerful Senate Judiciary Committee, but Republican George H. W. Bush was in the White House. Tradition dictated that a president’s nominees – whether for Cabinet positions, diplomatic posts, or judicial appointments – would be respected and given a fair hearing. In that year, Bush nominated Clarence Thomas for the Supreme Court. Biden conducted the committee hearing, giving voice to those for and against the nominee, including Anita Hill’s scathing allegations of sexual harassment by Thomas. The Committee, armed with the FBI’s interview of Hill, voted 11-1 to send the nomination to the Senate floor without a recommendation, and the Senate confirmed Thomas by a vote of 52-48, which included 11 Democrats voting aye, and two Republicans voting nay. That was then. Biden followed the traditions that were in effect at the time as opposed to what McConnell would do decades later when he held deceased Justice Antonin Scalia’s seat vacant for 13 months, denying President Barack Obama’s right to fill the seat. McConnell made up a rule that a Supreme Court lifetime seat cannot be filled in the last year of a presidency. When Justice Ruth Bader Ginsberg died in September 2020, McConnell changed his rule to say her successor could be chosen because the presidency and the Senate were held by the same party, the Republicans. Amy Coney Barrett was confirmed a week before Election Day. Where did these rules come from? They are not in the Constitution. Indeed, the Constitution says each body, House and Senate, writes its own rules, and that turns out to be a major flaw in the document. McConnell’s rules trumped Biden’s traditions. Clearly, our Founding Fathers failed. The system doesn’t work. Douglas Cohn’s latest books are The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officer). Twitter: @douglas_cohn © 2021 U.S. News Syndicate, Inc. Distributed by U.S. News Syndicate, Inc. END WASHINGTON MERRY-GO-ROUND
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