SCOTUS Battle as important as Cross Town Classic

Or maybe a little less…

The untimely death of Justice Antonin Scalia this weekend has started a partisan battle in Washington. The President is saying that he will nominate someone in due time which probably means about one month. Mitch McConnell, Leader of the Senate, is saying that no nominee of any stripes will be confirmed by the end of the President’s term, and this is an issue that must be left for the next President.

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The world will miss this important, colorful man.

The Republican leadership does a lot of infuriating and seemingly obstructionist things, but is this one Dems should be up in arms about? No, not at all. Whether you are a Republican or Democrat it should make no difference.

History offers very little in the way of precedent. In the last 80 years, there have been only two Supreme Court nominations during a presidential election.

  • The one that was confirmed was Anthony Kennedy but he was the third appointee for a seat that had been open for some time, so it doesn’t really count. Remember the vilification of Robert Bork? I met him a couple times. Nice guy, but comically disheveled.
  • The only true nomination during this period was Lyndon Johnson’s 1968 nomination which was not confirmed.

But it should be noted that during the 1968 hearings, the “Thurmond Rule” was created. The Thurmond Rule, named for long-time senator, Strom Thurmond, states just what Mitch McConnell voiced on Saturday – that no court nominations will be confirmed during an election year. Far more a guideline than a rule, it does still illustrate that the modern historical precedent is on McConnell’s side.

That may be little relief to you if you are a Democrat but there are better reasons to un-knot your knickers. First, just consider the simple mathematics behind it. The President knows that if he can get a candidate nominated before he goes, he has 100% chance of making it a Democrat (or one sympathetic to Democratic positions). If he passes and allows the next President to fill the seat, the uncertainty of the election reduces his odds to 50%.

On the other side of the aisle, the Republicans know that if they can’t hold off an Obama nomination, they stand a 0% chance of getting one of their nominees in place. But if they force the delay until there is a new President, their odds improve to 50%.

Maybe this is obvious, but from a political finagling perspective it illustrates that either side should do exactly what they are doing, and if the tables were reversed, it would be the Republican President promising to shove a nominee through the system and the Democrats promising to block it.

If my Democratic friends, continue to be enraged, here’s my final attempt to talk you off the ledge. Republican Presidents are notoriously rotten at picking conservative judges. To list a few examples, John Paul Stevens, nominated by Gerald Ford, was a leader of liberal jurisprudence at the time of his retirement. David Souter was appointed by George H Bush and is considered one of the most liberal judges on the bench. And most recently John Roberts, that handsome devil and Chief Justice appointed by George W Bush was the deciding vote upholding Obamacare.

So…

In nonpartisan times, I think the Senate would probably have the power to determine which President gets to appoint the next nominee, and in this day and age I think the it’s a foregone conclusion that the Republicans will hold true to their promise – and suffer little damage for it. Still, judges are fair by nature and those who make it to this level should not be feared.  Reserve your emotions for the positions that the candidates can control and don’t worry about the ones that are determined by simple math.

PS. It’s been nearly 8 weeks since I posted. I feel bad about that although my apology is largely directed at myself for getting too busy to do what I care about. I came out of the holidays with a new tutoring responsibility, a short eBook that I wanted to publish on learning multiplication tables without memorization, some 8-Bit Bats to sell, and several friends awaiting my attention on proposed business plans. I am still not caught up, but I am working back toward balance and more regular posts will return over the coming weeks.

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