Sunday, February 14, 2016

The SCOTUS: A Proposal To Consider...

Supreme Court Justice Antonin Scalia died yesterday at age 79. Regardless of what one thought of his politics, he was a force with which to be reckoned; a man and a judge who devoted himself to his craft in the field of jurisprudence.

Justice Scalia's body wasn't even cold yet when the two political parties began staking out there positions on a potential replacement. The Democratic side was licking their chops about putting a permanent liberal majority on the Supreme Court, while Senate Majority Leader The Gobbler Mitch McConnell vowed there would no replacement until after November's election and a new president is inaugurated. This has led to the usual recriminations back and forth, and as usual, most of the talking heads don't have a clue as to how the Constitution actually works with regard to the positions on the Supreme Court. Some points before I get to the main thrust of this post:

a) The President doesn't "fill the vacancy"; there is a reason for separation of powers and such, so the President doesn't get unilateral power over judicial vacancies. He nominates a candidate for the position.

b) The Senate "advises and consents." This is not a rubber stamp. Just because a President likes a particular candidate doesn't entitle said candidate to the seat. The Senate needs to vet and decide whether a candidate for the judiciary. Whether a candidate gets out of the Senate Judicial Committee and brought for a vote is something for McConnell to decide.

c) The Democrats' handwringing over this vacancy is a bit disingenuous: blocking a nomination is not a new tactic, and when in the majority, they even eliminated the filibuster for judicial nominees. True, it wasn't for a Supreme Court vacancy, but to quote someone rather famous..."what difference, at this point, does it make?" Long story short...what's good for the goose is good for the gander.

d) I can't foresee a recess appointment, although some are calling for that. Recess appointments are by definition temporary, so in 10-12 months, such an appointment would expire and wouldn't make any sense for the purposes of voting.

e) Will the Supreme Court cease functioning if there are only *eight* members? Might make for some more appellate decisions standing, but otherwise, it's not really a huge deal if they go with eight members for a while.

So anyway, the reason for writing this post (after the long above digression) is to provide layman's advice to President Obama. As a non-partisan independent-minded conservatarian-type, I'm sure my proposal will go over as well as  finding drunken vomit on the Oval Office desk, but here it is:

President Obama should nominate Ted Cruz for the Supreme Court. 

This would be the shrewdest long-term move, but would never happen just for political and partisan reasons alone. Unfortunately, politicians don't tend to look long term for nearly anything; they are just looking for how to get to next Friday night after the inevitable weekly news dump. I am pretty sure the President is looking to nominate someone on which he believes the Democrats and the media can constantly attack the Republicans. This means he will nominate a minority female, or perhaps an individual who practices Islam.

The way I see it, following the conventional path there is mostly going to be a way to rile up the base and an attempt to gin up fundraising and turnout for a party that isn't particularly thrilled for Hillary Clinton (who will be the nominee - Bernie has to realize he's being played like a fiddle. If the superdelegate aspect of New Hampshire doesn't convince him, nothing will).

Much like with Scalia, I don't think anyone who isn't already an ideological hack would quibble with Ted Cruz's credentials (in other words, spare me the ideological cri de coeur - I'm already aware of what most people think of him, politically). He's certainly qualified to be on the Court, with experience as a clerk for Chief Justice William Rehnquist, the Solicitor General for the State of Texas, and general legal experience as counsel and in government, and President Obama would be wise to do so. Consider the following...

1) Nominating Cruz would virtually ensure the Democrats win the White House. At this juncture, he is the only Republican candidate who has a shot at knocking off Donald Trump. If Cruz were to win the Republican nomination for President, he has a decent shot at winning. Donald Trump being the nominee makes it a near certainty of a Democratic landslide in November, even for someone who is currently under FBI investigation. Trump has no shot at winning, a) because he is a Mussolini-wannabe, and b) due to the Lattanzi Ironclad Rule of Voting (read #1 at the link to get my opinion of Mitch McConnell, if you haven't figured it out already). 

2) Nominating Cruz would be maintaining the status quo prior to Justice Scalia dying. It would still be a generally 5-4 conservative tilt of the Court. Pile this on with the above, knowing that there may be two (if not three) vacancies coming in the next four years (Kennedy is the big one plus Ginsburg, and possibly Breyer). It's a trade of short-term pain for long-term gain. Going with the standard conventional path may backfire on the President because this issue has been pushed to the front burner. It's generally a GOP meme article of faith that "you need to elect us because of the judiciary" but in this case it is actually true for once this year.

3) The biggest objection other than from the President's own side about the craziness of nominating Ted Cruz (I'd say crazy, like a fox) would be how would a Republican Senate who hates him actually confirm him? I believe this is way overblown. The fastest way to get rid of him from that most deliberative chamber in the Capitol is to send him across the street for the rest of his life.   

So to summarize: Nominating Ted Cruz would throw the election to the Democrats in November while not really changing anything of substance on the Supreme Court and also allowing Mitch McConnell to return to giving away the farm on every substantive issue. Everyone wins!

Ok, I know none of this is going to happen, but it would be fun to see people's heads spin just by the announcement, Democrat and Republican alike. If only...

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