The Scalia Controversy – To Bork or Not to Bork, That Is the Question

Justice Antonin Scalia
Justice Antonin Scalia; rest in peace and thank you for your service!

This morning in February of 2016 I find myself struggling a bit with the question of whether the Republican-controlled Senate should unilaterally prevent President Obama from installing a replacement Supreme Court Justice to replace recently deceased Justice Antonin Scalia simply by refusing to initiate the accepted practice of confirmation hearings and “up-or-down” votes as Senate Majority Leader Mitch McConnell has stated is his intention.

Let’s look back just 30 years into history, into the living memory of many Americans, and certainly most of the current membership of our Senate.

In 1972 President Richard Nixon appointed Supreme Court Justice Lewis Powell.  Justice Powell served for 15 years until announcing his resignation effective June 26th of 1987.  Now the President was Ronald Reagan who nominated Judge Robert Bork.

The Democrats considered Bork to be an “ideological extremist” who they feared would “roll back Civil Rights decisions” – and indeed Bork had stated as much, in particular he disagreed with some recent decisions of lower courts relevant to Civil Rights.  Thus began a hotly contested debate in the Senate over the Supreme Court vacancy.  (https://en.wikipedia.org/wiki/Robert_Bork_Supreme_Court_nomination)

Judge Robert Bork
Judge Robert Bork – victim of Liberal hypocrisy and manipulation of Senate rules

The Democrats controlled the Senate at the time with 54 members, interestingly the same number currently held by the Republican Party in our Senate today.  Their Majority Leader at the time was Robert Byrd, himself a former Ku Klux Klansman, and founder of a chapter of the KKK in Sophia, West Virginia in the 1940s. (https://en.wikipedia.org/wiki/Robert_Byrd.)  Byrd had been a member of the short-lived States’ Rights Democratic Party known as the “Dixiecrats” who opposed racial integration and wanted to keep “Jim Crow laws” (another Democrat construct) and white supremacy in the face of Federal Civil Rights intervention driven by… well you guess it – the Republican Party.  Eventually the “Dixiecrats” were absorbed into the Democratic Party, where their spirit covertly lives on today… stick that into your back pocket the next time a Liberal gets all high and mighty about their Civil Rights track record.

But somehow by 1987 Byrd and his fellow Democrats were true Civil Rights champions and friends of African-Americans.  Byrd called for a “solid phalanx” among Senate Democrats to oppose Bork, and in the end after much angry debate they rejected Bork’s nomination, 58 to 42.

Eventually the vacant seat on the court to which Bork was nominated went to Judge Anthony Kennedy, also nominated by President Reagan, who serves on the Supreme Court to this day.

During interviews Bork was barraged with scathing and angry questioning by the DNC-controlled Senate, giving rise to the expression “being Borked” – to be defeated in the Senate confirmation process typically by concerted attacks on one’s character, background and philosophy (https://en.wiktionary.org/wiki/bork.)

Fast forward back to 2016 and an eerily similar situation in the Senate today.

The relevant section of the U.S. Constitution – Article II, Section II – reads in part; “He [the President] 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.”

Seems simple enough.  The Senate is constitutionally required to either take up consideration of the President’s nominee if he puts one forward, or to allow the confirmation of such a nominee without debate, though there is neither a specific timeframe nor method by which this “advice and consent” process is to take place… at least not written into the Constitution.

Historically it is generally accepted that a simple majority of support among Senators has been sufficient to confirm a Presidential nomination for the Supreme Court.  If a filibuster is initiated by the opposition to a given nominee then a three-fifths vote is required to override that blocking action.

There is also the issue of the so-called “nuclear option” exercised in 2013 by then Senate Majority Leader and Democrat Harry Reid, who overrode the filibuster three-fifths rule by first winning a simple majority vote among Senate Democrats to call for a rule change, then winning another simple majority vote to change the rules of the Senate to allow a filibuster to be ended with… yup, a simple majority vote!  Sneaky, underhanded bastard that Harry Reid is… he simply changed the rules.

It is unclear exactly how McConnell would proceed with respect to Senate rules and procedure.  Currently, thanks to Harry Reid, a simple majority in the Senate would be sufficient to block any Democrat nominee if they chose to do so, filibuster or no.  The Republicans control the Senate 54 to 46 (just as the Dems did in 1987), so they would win there, assuming that no more than three Republican Senators defect (you know that somebody would!)  Even with a three-fifths requirement the Republican-controlled Senate would still be able to oppose a Democrat nominee since the Democrats would need a full 60 votes to confirm, and they would never assemble such a bloc.  (https://en.wikipedia.org/wiki/Advice_and_consent#Use_today)

Remember that this is not a blocking action, it is an approval action.  The requirement is that the Senate must “consent” to the President’s nominee.  To do that the President must win 51 (or perhaps 60) “in favor of” votes in order to see his nominee confirmed.

OK, enough history and Senate process.  Back to the original question… to “Bork” or not to “Bork.

Initially, on hearing of the untimely death of Justice Scalia and of McConnell’s intention to unilaterally deny due process to any Obama nominee I felt that was the right course of action; it is not.  It is simply the easy course of action.

I learned long ago that if I wanted to count myself as a man of law, principles and honor I would have to live my life choosing the hard right over the easy wrong.

After careful consideration it is my opinion that the GOP-controlled Senate should not block President Obama’s Constitutional authority – and indeed, duty – to appoint a new Supreme Court Justice if he chooses to do so.  Instead they should follow the long-established practice of (1) having the President’s candidate appear before the Senate Committee on the Judiciary for as many interviews as may be required, (2) hold a vote within that special committee in a timely manner, and if the candidate is successful, allow that candidate to proceed to the full Senate for an “up or down” vote… in a timely manner… without undue delay… well before the elections in November!

Let me be clear… I would hold this  opinion even if the Republican Party did not currently control Congress

The “advice and consent” process in the Senate with respect to a Supreme Court nominee begins with Senate Committee on the Judiciary.  Currently that body consists of 20 Senators – 11 GOP and 9 DNC.  Senator Ted Cruz is a member of that Committee, so this activity would certainly cut into his bid for the Presidency in November.  The Senate Majority Leader – Senator Mitch McConnell – could easily negotiate a substitution from within the GOP and replace Sen. Cruz.

Further considerations beyond the “right and wrong” of the issue are…

  • Morally, it is critical that the American Conservative movement maintains the high ground going forward if we hope to cure this nation of its rampant Liberalism. Liberals use the courts and Congressional procedure to circumvent the will of the American people – Conservatives should not.
  • Ethically, my position follows the established process and allows the vote of the elected representatives of the People and the States – our Congress (in this case the Senate specifically) to be the deciding factor. If this process moves forward it will be undeniably open, transparent and honest in the eyes of any thinking, rational American regardless of political persuasion.  The American people must see the American Conservative movement acting fairly.  It may even serve to ease mounting tensions between the DNC and GOP in the Congress overall… if only a bit.
  • Tactically, regardless of speed or eventual outcome, following established Senate procedure will placate American Liberals, giving them one less issue to use to agitate their disenchanted voting base in the critical months leading up to our next Presidential election. In particular this is the sort of thing that the Liberal youth vote might rally around.
  • Lastly this is exactly the sort of tactic that Senator Harry Reid – the much reviled Democrat Senate Majority Leader for 10 years – might use now if the situation were reversed. We hated him for his obstructionist tactics then and should not engage in them ourselves now!

Really there is no rush to appoint a replacement for Justice Scalia.  It is not a Constitutional crisis to have an extended vacancy in the Supreme Court.  In fact there is ample historical precedent for the Senate to move slowly and deliberately in this important process.  It has happened many times in the past when the Senate has refused Presidential nominee after Presidential nominee stretching out as long two years or more. (http://thefederalist.com/2016/02/13/ample-precedent-for-rejecting-supreme-court-nominees/)

Neither are nine Supreme Court Justices even required.  The U.S. Constitution does not specify exactly how many there must be, and it was not until the Judiciary Act of 1789 (a law, not an amendment) that the number was set at six; a Chief Justice, currently Justice John Roberts, and five Associate Justices of which Justice Antonin Scalia was one.  We can lose another two Justices and still be in compliance with the law.

Regardless of history and precedent, however, the main stream media has already thrown their arms up and shouted their support of the President even before a single nominee has been offered.  All of the late night talk show hosts are working hard to make this a clarion call to America’s Liberal youth, and both Hillary Clinton and Bernie Sanders are making much hay of McConnell’s premature statements of unilateralism.

Conservatives should simply be patient but press our Congressmen to do the right thing, conduct the confirmation hearings, and rely on the majority Conservative bloc in the Senate to win the day… at least through to January of 2016 when the situation will probably change dramatically.

Have a little faith in “the system” this time because it seems that for once in a very great while things are actually going our way, and after all we have to live in this country under the U.S. Constitution despite how most of us have come to despise and distrust nearly all politicians in recent years.

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