Antonin Scalia

A Way To Promote End Of Political Polarization: Nominate Merrick Garland A Justice Of The Supreme Court

Assuming that the nomination of Brett Kavanaugh to the Supreme Court fails to gain a majority of the US Senate, the future of the Court and its reputation remains at stake.

One way to resolve it is for both Republicans and Democrats to work toward the end of polarization, and call upon President Donald Trump to nominate Merrick Garland to the empty seat on the Supreme Court, three years after he was summarily dismissed and ignored by the Republicans, when President Barack Obama nominated him to replace Antonin Scalia, who died in February 2016.

Merrick Garland was seen by Obama as a compromise choice, whom the Republicans would accept, as he is seen as a moderate, and has a distinguished background as the Chief Judge of the US Court Of Appeals for the DC Circuit, the highest court next to the Supreme Court.

Garland is technically the “boss” of Brett Kavanaugh, and also was of Supreme Court Justice Neil Gorsuch, and both of them have always been very positive in their views of Garland.

Being in his mid 60s. Garland would serve far less than the theoretical 30 years that Gorsuch might serve, and that Kananaugh might serve if he was confirmed.

Garland is perfectly qualified to keep the Court balanced, and would likely replace Anthony Kennedy as the “swing vote” on the Court, and would prevent the kind of polarization represented by an extreme right wing choice for the Supreme Court, keeping it as four liberals, four conservatives, and Garland as the crucial vote, sometimes siding with one or the other side, as Anthony Kennedy did, and earlier, Sandra Day O’Connor did.

Why could not the two parties agree to a truce, to work toward cooperation, and return the US Senate to what it was under Lyndon B. Johnson and Ronald Reagan, when Senator Everett Dirksen worked with LBJ, and Speaker of the House Thomas “Tip” O’Neill did with Reagan, working across the aisle on many matters?

It is proper that Merrick Garland be put on the Court, as a distinguished, and accomplished man, who deserves, belatedly, three years late, to give his service to our nation’s highest Court.

Supreme Court Longevity An Issue, As Recent Justices Have Stayed Much Longer Than Average, Including Contested Nominee Clarence Thomas

In the midst of the controversy over Supreme Court nominee Brett Kavanaugh is the reality of how long he might serve.

There has been a trend whereby recent Supreme Court Justices serve much longer than historically traditional.

Right now, contested Supreme Court Justice Clarence Thomas, who was confirmed in 1991 despite strong testimony of Anita Hill, has served 27 years on the Court, and is already number 24 in longevity of service out of 113 members of the Court in American history. He will be number 17 in two years and number 13 in four years. In May 2028, he would break the all time record of 36 years and nearly 7 months of Justice William O. Douglas, and Thomas would be just about a month short of age 80, and can be seen as likely, if he stays healthy, to accomplish this goal.

If one just looks at the top fourth of all Supreme Court Justices in longevity, a total of 31 out of 113, all 24 years or more of service, we find the following recent Justices, all appointed since the 1950s, are on the list:

John Paul Stevens
William Brennan
William Rehnquist
Byron White
Anthony Kennedy
Antonin Scalia
Clarence Thomas
Ruth Bader Ginsburg
Sandra Day O’Connor
Harry Blackmun
Stephen Breyer
Thurgood Marshall

In the earlier history of the Supreme Court, the average length of service was about 15 years by comparison.

That is why the idea, proposed by this author two days ago, that a future Supreme Court Justice be limited to an 18 year term, allows for turnover, and prevents dominance by an ideological minority for decades, as now is threatened by Brett Kavanaugh, or another extreme right wing appointment by Donald Trump.

Supreme Court Membership Could Be Increased In Future By Democratic Party Senate Majority, Perfectly Legal

Progressives have developed the idea that in the future, when Democrats gain the majority of the US Senate, they may move toward increasing the membership of the Supreme Court, playing hardball as much as the Republicans have under Senate Majority Leader Mitch McConnell.

McConnell refused to allow hearings for Merrick Garland, Barack Obama’s Supreme Court nominee to replace the dead Antonin Scalia, saying it was an election year, and improper to allow an outgoing President to make an appointment.

This was preposterous, as John Adams named John Marshall Chief Justice in 1801, after losing reelection to Thomas Jefferson; Andrew Jackson chose Supreme Court Chief Justice Roger Taney in 1836, his last year in office; and Grover Cleveland, Benjamin Harrison and William Howard Taft chose Justices in their last year in office; and Herbert Hoover chose Benjamin Cardozo in 1932, his last year in office; and Dwight D. Eisenhower chose William Brennan in the year of his reelection campaign; and Ronald Reagan chose Anthony Kennedy in his last year in office in 1988.

We have had differing numbers of justices. up to ten, and there is no constitutional barring of adding more Justices, as Franklin D. Roosevelt wished to do in 1937.

What is good for the goose is good for the gander, as the saying goes, and this might be a way to wield power on the part of the Democrats to create a balanced Court, as otherwise, we will have the most extremist Court since the 1920s!

The Tough Battle Ahead On Supreme Court Replacement For Justice Anthony Kennedy

The retirement of Supreme Court Justice Anthony Kennedy, a conservative but moderate on such issues as gay rights and gay marriage, abortion, affirmative action, flag burning, and the use of the death penalty, leaves the Senate in a tough battle for confirmation of whoever Donald Trump appoints as his replacement.

The fair thing to do would be to postpone the appointment and confirmation hearings until after the midterm elections of 2018, just as Senate Majority Leader Mitch McConnell prevented hearings and a vote on Barack Obama’s choice of Merrick Garland to replace Justice Antonin Scalia in 2016, a Presidential election year. But it is clear McConnell has no such intentions to treat this situation in the same manner as he did two years ago.

So the question is whether there is any possibility of stopping a Trump appointment, and it seems pretty gloomy and very little chance to intervene and delay or prevent a confirmation of a new Supreme Court Justice.

With only 49 votes, the Democrats need one or two Republicans to join them in opposition, and for all Democrats, including more moderate and conservative members of the caucus, to stay loyal, even in an election year where 10 Senators who are running for reelection are from Trump carried states.

The saddest part of all this is that now we will have FOUR Supreme Court Justices–two by George W. Bush and two by Donald Trump–selected by Presidents who massively lost the popular vote in the elections in 2000 and 2016 when the Electoral College went to them.

Six of the last seven Presidential elections have seen the popular vote won by Democrats, all but 2004 since 1992, but the power over the future of the Supreme Court has been lost for the long term, for the next 30 years, beyond the theoretical lifetime of this author and blogger, and of many people who are 40 or over right now!

Lying In State And Honor At The US Capitol Rotunda In American History

The Reverend Billy Graham is lying in state and honor at the US Capitol Rotunda in Washington, DC today.

This is a rare event, and Graham is only the fourth private person outside of government to be so honored, along with Civil Rights Icon Rosa Parks in 2005, and two police officers who defended the Capitol from a gunman in 1998.

The list of government figures who have been so honored include 11 Presidents; 10 Senators; Soldiers of the various wars of America in the 20th century; and a few other military and government figures.

Henry Clay 1852
Abraham Lincoln 1865
Thaddeus Stevens 1868
Charles Sumner 1874
Henry Wilson 1875
James A. Garfield 1881
John A Logan 1886
William McKinley 1901
Pierre Charles L’Enfant 1909
George Dewey 1917
Unknown Soldiers of World War I 1921
Warren G. Harding 1923
William Howard Taft 1930
John Joseph Pershing 1948
Robert A. Taft 1953
Unknown Soldiers of World War II and the Korean War 1958
John F. Kennedy 1963
Douglas MacArthur 1964
Herbert Clark Hoover 1964
Dwight D. Eisenhower 1969
Everett McKinley Dirksen 1969
J. Edgar Hoover 1972
Lyndon Baines Johnson 1973
Hubert H. Humphrey 1978
Unknown Soldier Of the Vietnam Conflict 1984
Claude Denson Pepper 1989
Jacob Joseph Chestnut and John Michael Gibson (US Capitol Police Officers)
Ronald Wilson Reagan 2004
Rosa Parks 2005
Gerald R. Ford, Jr. 2006-2007
Daniel K. Inouye 2012

Additionally, Salmon P. Chase 1873 in the Senate chamber; Samuel Hooper 1875 in the House chamber; also Thurgood Marshall in 1993, Warren Burger in 1995, and Antonin Scalia in 2016 at the US Supreme Court; as well as Commerce Secretary Ron Brown at the Commerce Department in 1996.

The Never Ending Nightmare Of Donald Trump, Who Has Disgraced, Undermined, Tarnished, Stained, And Harmed The Reputation Of The Presidency!

As we see the end of the first year of the Donald Trump Presidency, it is clear that it is a never ending nightmare visited on the American people.

Donald Trump has disgraced the office of the Presidency.

Donald Trump has undermined trust and faith in the law, the Constitution, and American democracy, and demonstrated lack of respect for freedom of the press.

Donald Trump has tarnished the reputation of America as the leader of the world.

Donald Trump has stained the concept of decency, dignity, and concern of the leader of the nation for those less fortunate, or facing historic discrimination.

Donald Trump has harmed the reputation of the Presidency as an office which promotes basic moral and ethical values.

Donald Trump has affected the relationships between men and women, boys and girls, in a deleterious manner, which will harm the nation long term.

Donald Trump has manufactured and promoted more lies than any American politician in American history, and undermines the ability of Americans to respect the office and the person who holds that position.

Donald Trump has damaged America long term in just one year, as with the long term effects of his lower court appointments, and his selection of Neil Gorsuch to the Supreme Court, who seems short term to be further to the right politically than Clarence Thomas and Samuel Alito, and maybe even the man he replaced, Justice Antonin Scalia.

Donald Trump has left a legacy of environmental damage that will not be easily reversed, and of harm to labor and consumers that will set back the dwindling middle class and the working class for decades.

Donald Trump has also given us the worst set of cabinet members ever, far worse already than Richard Nixon, Warren G. Harding, or Ulysses S. Grant.

Donald Trump has left already an indelible mark on America, and is on the way to the worst four year term in history, bar none, and with the danger of two wars being started, if he lasts into the end of the second year–against North Korea and Iran.

We should all hope that Donald Trump is forced out of office soon, although the prospect of President Mike Pence is a ghastly thought at this point.

What the Russians did has succeeded, destroying our presidential election, and giving us horrifying alternatives in Pence, Speaker of the House Paul Ryan, and Senate President Pro Tempore Orrin Hatch, when clearly, Hillary Clinton won an election that was stolen from her!

Donald Trump’s First Hundred Days: An F Grade Is Appropriate! Neil Gorsuch Is The Only “Accomplishment”!

This is the season for judgment on Donald Trump’s First Hundred Days, and being a professor of history and political science, as well as a lecturer, blogger, and published author of two books and many articles, the conclusion is clear.

Donald Trump gets a F for his performance, easily the least accomplished President in the first Hundred Days, with only one major accomplishment, the approval by the US Senate of his Supreme Court nominee, Neil Gorsuch.

But even that only came about because of the Republican decision to abandon the filibuster rule, therefore allowing Gorsuch to be confirmed without a 60 vote margin usually required before a final vote. And it seems likely that Gorsuch will, sadly, take America backwards, maybe more so than his predecessor, Antonin Scalia. Gorsuch will affect constitutional law in a detrimental way, based on his earlier record as a circuit court judge.

Otherwise, Trump has been all bluster and bullyism, who has made many promises, and none of them nearing fulfillment. Trump’s public opinion ratings are by far the lowest of any President since polling began, particularly at this early a stage of his time in office. He has never had the majority of the nation behind him, either in the election, during the transition, or now after a hundred days in office.

Donald Trump has done more to divide America in his first Hundred Days than any previous President, and he relishes conflict, rather than compromise and unity. He has pitted his white working class supporters against minorities, and yet he is showing lack of any concern about those who supported him. There are signs already of disillusionment and “buyer’s remorse” by many who voted for Trump.

He has promised a Mexico Wall which will not work, if it is ever built, and it will add many tens of billions to the national debt, and Mexico is not going to pay for the Wall, and one hopes Trump is not ready to start a war with our neighbor, as he has more than enough foreign policy problems as it is.

He saw his National Security Adviser, Michael Flynn, forced to resign in less than a month, and there has been total chaos, anarchy, and disarray with the White House staff, with the only good thing being the lessening of the influence of right wing radical Stephen Bannon, and the rise of the influence of Ivanka Trump, and her husband Jared Kushner. It is hoped that the couple will have a humanizing influence on Trump, which would be a good thing.

Meanwhile, the Russian connection to Trump is still being investigated, and could force him out of office at some point. But meanwhile, Trump has been saber rattling with North Korea and Iran, and has bombed Syria and Afghanistan, and continues to promise the total destruction of ISIL (ISIS). Relations with Russia, at least publicly, are deteriorating as well.

Trump has managed to create hostility and antagonism with such allies as Great Britain, France, Germany, Canada, and Australia, while seemingly cozying up to China over the Korean issue, and therefore changing his hostile tone in the campaign toward China.

Trump has shown his total ignorance of history and of science, and has declared war on the environment, on consumer rights, on labor rights, on women’s rights, on the Hispanic community, on African Americans, and on the health care system itself. He seems unconcerned about the loss of health care for 24 million Americans, and is just out to trash his predecessor, Barack Obama.

His appointments to his cabinet are atrocious, and we have the most terrifying Attorney General in all of American history in Jeff Sessions.

Trump has failed to gain any legislative accomplishments, and has, instead, used twice as many executive orders than his last two predecessors, but many are mean spirited and negative, undermining our values and the historical accomplishments of government in the past hundred years since Franklin D. Roosevelt, and including Republican Presidents, as well as Democrats.

Trump makes Richard Nixon look much better, and even the weaknesses and shortcomings of George W. Bush pale by comparison, as at least Bush was a decent human being, while wrong headed.

His anti immigrant, nativist stand is a stain on history, and the tragedy of deportation of children protected under executive order of Barack Obama adds to the horrors of families being torn apart.

His condemnation of the judiciary is detrimental to respect for the law, and his Muslim bans have been held up by courageous federal court judges.

Trump, in many ways, is the third President without a party, as there is a major split in the Republican Party, and there are many officeholders and conservative journalists and intellectuals who have major problems with him. John Tyler and Andrew Johnson are the earlier Presidents who had no party backing, but Trump was elected, while they were not, but Trump’s constant switches of position, and his lying, and insulting, undermine his Presidency dramatically.

Donald Trump comes across, ultimately, as the least likable President, if one judges by his character, his behavior, and his basic values.

Trump has no background, experience, knowledge, or ethical standard to be our President, and one must recall that 54 percent of those who voted, were against him, and he is the 7th lowest popular vote percentage winner of all Presidents, with the others–John Quincy Adams, Abraham Lincoln, Woodrow Wilson, Bill Clinton, Richard Nixon, and James Buchanan–all having two or three opponents who won electoral votes, while Trump only had Hillary Clinton as an electoral vote competitor. And Hillary won the biggest margin of popular votes of any losing candidate–2.85 million popular votes.

The nightmare of Donald Trump has just begun, and America is a loser for having, somehow, elected this egomaniac and narcissist, who is only out for his own glorification!

115th Congress Begins Tomorrow: Joe Biden Could Have A Surprise (We Can Hope)!

Tuesday, January 3, is the opening of the 115th Congress, but Joe Biden is still Vice President for 17 days more, and could have a surprise up his sleeve, which is perfectly constitutional.

What is this potential surprise?

Joe Biden, in league with Democrats in the US Senate, can call for an immediate vote on the languishing Supreme Court appointment of Merrick Garland, made ten months ago, to replace Justice Antonin Scalia, who died in February of last year.

It is unheard of to deny the Supreme Court a full number of members for an entire year, but this is what the Republicans and Senate Majority Leader Mitch McConnell did, and it borders on unconstitutionality, for which the Republicans have suffered no consequences.

Joe Biden, after 36 years in the US Senate, and eight as Vice President under Barack Obama, has continued to keep good relationships across the aisle, and was praised profusely recently by Republicans, as well as Democrats, in a near eulogy about his great Senate and public service.

But that does not mean that Joe Biden is, as nice and gracious and cordial and warm as he is, not willing to be a gutter fighter over principles he believes in, and he was vehement at the unfairness of not giving Merrick Garland a Senate hearing at the least, on his unquestioned qualifications to be a Supreme Court Justice.

Garland was “railroaded” in Biden’s mind, victimized for no good reason, and Joe feels Garland should not be pushed by the wayside, in his own heart and mind.

So the rumors were around, and then hushed, that Joe Biden might call for a vote of the 66 returning Senators who do not need to be sworn in by him after 12 noon tomorrow.

If he decides to call a vote, the balance of those 66 Senators is 34 Democrats, 2 Independents (Bernie Sanders and Angus King), and 30 Republicans, so on a straight party line vote, Garland would be confirmed 36-30, and Mitch McConnell and the Republicans could do NOTHING about it legally, as it is constitutional to call a vote, and there is no constitutional requirement to have hearings. Many Justices never had hearings, which only became customary and drawn out in the 1980s, when Joe Biden led the fight with Ted Kennedy against Robert Bork, and later in the 1990s and since, when Joe Biden led the fight against Clarence Thomas on the Court.

So the point is that Joe Biden knows now to play “hard ball”, and he just could surprise us tomorrow, which would lead to condemnation by the right wing and Republicans, but who really cares?

The GOP does not worry about being nasty and playing “hard ball”! In fact, they specialize and revel in it, so let them stew in their own juice!

Let us hope that Joe makes news and distinction for one of his last actions as Vice President and Presiding Officer of the US Senate.

Let him become the center of attention, and maybe, just maybe, if he stays in good health, he can break a new barrier in four years, becoming the oldest President of the United States at age 78, making Donald Trump and Ronald Reagan look like youngsters by comparison.

Certainly, Joe Biden, the common man with no fortune, running against the wealthiest and most arrogant man to ever hold the Presidency, Donald Trump, would look very tempting as an alternative in 2020, since so many think he could have won the difference in the vote in Michigan, Wisconsin, and Pennsylvania, had he run, and son Beau Biden had not tragically passed away in 2015.

And there are strong hints that Delaware Senator Tom Carper, with a long distinguished career with six years as State Treasurer, ten years as Congressman, eight years as Governor, and 18 years as US Senator by the end of 2018, may wish to retire, so imagine this!

Joe Biden could run for and win back a Senate seat and add to his 36 years in the Senate, and be a sitting Senator if he decides to run for President again, and if not, he can still serve his nation in the US Senate, and add to his distinguished record of public service!

The South’s Continuing Impact On Impeding Democracy With Voter Restriction Laws

The South lost the Civil War, but they continue to dominate American politics.

It used to be that the South was Democratic, and that they promoted slavery, Jim Crow segregation, and lynching.

Then, we had a Southern President, Lyndon B. Johnson, who accomplished the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, with the Southern wing of Democrats in Congress bitterly opposing it, and many of them, plus much of their population, abandoning the party and going to the Republicans.

Under Richard Nixon and Ronald Reagan, they found a home, and worked to undermine voting rights and civil rights, often with the support of those Presidents.

The state governors and legislatures became Republican controlled, and worked to limit civil rights and voting rights, and the Republican majority Supreme Court in 2013 cut back on enforcement of the Voting Rights Act.

As a result, Southern states and many midwestern and mountain states under Republican governors and legislatures started to pass new restrictive laws designed to undermine voting of minorities, particularly African Americans and Hispanics-Latinos.

This led to law suits and now decisions by federal circuit courts in North Carolina, Wisconsin, Kansas, and earlier, Texas, to declare such restrictive laws unconstitutional, a major victory which could affect the Presidential Election of 2016.

There will likely be an appeal to the Supreme Court, a clear cut reason to make sure that the Democrats win the White House and the US Senate, as the outcome for this election is uncertain, and the future of the Court and voting rights in the future hangs in the balance.

It seems likely that the present Court might split 4-4 without Justice Antonin Scalia, who died in February, and that would uphold the lower court decisions declaring such laws to be unconstitutional, but no certainly of that.

The South is crucial in our nation’s politics as they hold 22 seats in the US Senate, 31 percent of the seats in the House of Representatives (138 out 435), and 162 electoral votes in the Presidential race. And this does not include the Border states such as Kentucky, West Virginia, Missouri, and Oklahoma, which tend to the same politics of exclusion toward minorities and voting rights.

The Changing Supreme Court In 2017: A Move To The Left That Will Last To The 2040s Or Beyond!

With the reality that Democrat Hillary Clinton has a clear lead for the Electoral College, the likelihood of a liberal majority Supreme Court seems more certain in 2017 and beyond.

News that Justice Clarence Thomas might retire at age 68 in the next year is encouraging in that regard, but even if he does not, as his wife has just contended, the likelihood is of FOUR appointments to the Court outside of Thomas, with two of them (Antonin Scalia dead and Anthony Kennedy retiring) being a movement to the left, making at the least a 6-3 Court by 2020. If Thomas also leaves, it would be a 7-2 Court, which would have a long range effect to the 2040s or beyond!

The Supreme Court has had a Republican and conservative majority for 44 years, since 1972, so it is about time to right the balance and make for a revival of the Chief Justice Earl Warren Court, which had an effect for 16 years, and continued to influence, if not control the Court, with the extended service of Justice William Brennan and Justice Thurgood Marshall.

Fortunately, Justice Harry Blackmun, Justice John Paul Stevens, and Justice David Souter, all appointed by Republican Presidents, often joined the few liberals left on the Court, and prevented the Court from going even further Right than it did in those 44 years.

But there is a desperate need for a tilt to the left on so many issues, so that is the most important reason for the election of Hillary Clinton to the White House in November!