Antonin Scalia

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!

Barack Obama’s Supreme Court Solution: Choose Former Republican Supreme Court Justice Sandra Day O’Connor On One Year Term!

The Republican majority in the US Senate have made clear that they will not hold hearings, or in any fashion, consider the nomination of anyone selected by President Barack Obama to replace Associate Justice Antonin Scalia on the Supreme Court, leaving the membership at eight for over 400 days, until a new President has been inaugurated and chosen a successor.

There is not much that can be done about this in reality, except that it should convince those who support the Democrats to come out in droves and insure that Hillary Clinton or Bernie Sanders is elected President.

It is, certainly, another issue in the campaign for the national elections, and since Republicans are split around Donald Trump, it gives an advantage to the Democrats, if only they can convince voters not to sit home, when either Hillary or Bernie lose the Presidential nomination to the other over the next few months.

But Barack Obama could put the Republicans in a box if he were to nominate a former member of the Supreme Court, chosen by Ronald Reagan, to return to her seat which she gave up ten years ago, not because of her own health, but because her husband had Alzeheimers, and she wanted to take care of him.

Were it not for that, O’Connor, with 25 years on the Court, could be close to the all time record of service of Justice William O. Douglas, who served 36 years from 1939-1975.  Her age is not an issue, as Justice John Paul Stevens was on the Court until age 90 and Justice Oliver Wendell Holmes a few months older but still age 90.

Yes, O’Connor will be 86, but she would be capable of serving for a year, and her record shows she would be a balancing influence, much like Justice Anthony Kennedy, not a certainty to vote with conservatives or with liberals on the Court.

This way, she would be able to help the Court do its work, serve her country, and leave after a new President made his or her appointment shortly after inauguration.

One can be sure that O’Connor would do her duty for her country, as she is highly honored already.  And Associate Justice Charles Evans Hughes came back to the Court as Chief Justice 14 years after leaving the Court in 1916.

So the best solution is for Obama to request that O’Connor agree to return, and it will put the Republicans in an awkward situation if they refuse to allow it!

Most Significant Election Since 1968: Presidency, Senate, And Supreme Court Are In Play!

It is becoming very clear that the Presidential Election of 2016 will become the most significant election since 1968, when we saw the beginning of the Republican resurgence under Richard Nixon, due to the splintering of the Democratic Party under Lyndon B. Johnson, due to the turmoil around the Vietnam War and the Civil Rights Movement.

The Democratic New Deal coalition had lasted 36 years, with only Dwight D. Eisenhower, really a non politician who ran on the Republican line after being briefly considered by Democrats in 1948, breaking the Democratic dominance, which also included Democratic dominance of the Congress, except in 1947-1948 and 1953-1954.

Since 1968, the Republicans controlled the White House for all but for the four Jimmy Carter years up to 1992, and then won a contested election in the Supreme Court, giving the Presidency and the Republican Party control in the early 2000s under George W. Bush.  And the Congress was Republican, except briefly from 1994-2006, and again after 2010 in the House of Representatives and 2014 in the US Senate, after the Senate had been Republican in the first six Reagan years of the 1980s.  And the Court appointments after 1968 have been 13 under Republicans and only 4 under Democrats, but with the death of Antonin Scalia, the possibility of a permanent (for a generation) Democratic and liberal majority is within reach.

Now, after a long period of Republican control of the Supreme Court, it will come to an end if the Democrats can win the Presidency again, and if they can regain control of the US Senate, so this is easily the most transformative election in a half century!

It would transform America IF the Democrats can gain the upper hand in the Senate, the Supreme Court, and the Presidency, and the hope is that the House of Representatives might be different after reapportionment after 2020. with the goal now to create a smaller GOP margin in the lower House in the interim.

One period of Democratic dominance was replaced by a period of Republican dominance, and with the GOP splintering around Donald Trump, we might be seeing a return to the concept of the New Deal-Great Society and a new Progressive Era.

It all depends on voter turnout and commitment, and for anyone to be lackadaisical and not vote, is inexcusable in the present circumstances!

Three Eisenhower Supreme Court Appointments Were “Recess” Appointments: Earl Warren, William Brennan, Potter Stewart!

Barack Obama has a perfect opportunity to select a replacement for Justice Antonin Scalia right now, this week, before the Congress returns from the Presidents Day recess!

Sure, the Republicans would scream and yell, and probably threaten to impeach, but it is totally legitimate for the President to go ahead and nominate a Justice, who would immediately take the seat of Scalia.

And history tells us that Dwight D. Eisenhower had THREE recess appointments, all outstanding:

Chief Justice Earl Warren 1953

Associate Justice William Brennan 1956

Associate Justice Potter Stewart 1958

And the Brennan appointment was right before the Presidential Election of 1956, when in theory, Ike could have lost the election, but still the appointment went ahead, and Ike was elected to his second term!

So enough already of the hand wringing, and Obama needs to insure a nominee now, to prevent a vacancy for a year, which would cripple the Supreme Court’s ability to do its job!

 

Barack Obama’s Supreme Court Choices

Barack Obama has every right, and the responsibility, to select a replacement for the late Supreme Court Associate Justice Antonin Scalia.

We have never had more than 125 days from an appointment to confirmation, and never more than 114 days from an appointment to rejection by the US Senate.

The Supreme Court cannot do its proper job with eight members for more than a year, so Obama must push for his nominee, and if the GOP refuses, they will suffer in the Fall campaign in Congress and for the Presidency.

The Republicans have prevented action in the legislative branch, and tried to bottle up the executive branch, but cannot get away with blocking the judicial branch.

As far as who Barack Obama should select for the Court appointment, there are many names mentioned, but it would be good to have a Supreme Court Justice who has NOT been a federal judge, as this trend did not always exist in the past.

We need a wider variety of experiences, and one can think of Earl Warren, Governor of California, and Hugo Black, Senator from Alabama, as two exceptional Justices who never served as judges. We have had 14 Senators and 17 Congressman on the Court, with Warren an outlier, but Governor of a major state that was on its way to being number one in population.

So one can think of former Massachusetts Governor Deval Patrick;  Senator Cory Booker of New Jersey; Senator Amy Klobuchar of Minnesota; and Attorney General Loretta Lynch as excellent possibilities, with hints that Lynch might be the choice!  Some mention of Senator Elizabeth Warren of Massachusetts has arisen, as well.

We would have our first African American woman on the Court with an appointment of Lynch, and she is used to long waits for confirmation, as with six months to become Attorney General.

IF Obama took action this week, during the recess of Congress for Presidents Day, the nominee would take his or her seat immediately, and the GOP could do nothing about it, so why not take action when one can?

But at worst, if the Court had to live with eight members, Lynch could stand by, stay as Attorney General to the end of the term, and then be chosen by Democrat Hillary Clinton or Bernie Sanders, assuming one of them become the 45th President of the United States.

But really, the Court NEEDS a new Justice NOW, and tough luck that the Republicans lose their control of the Court majority after 44 years!  Such is life, and it is time for the liberal-progressive agenda to be the majority of the Supreme Court’s future, as elections, as that of Barack Obama in 2012, DO have consequences!

44 Years Of Republican Supreme Court Majority Comes To An End With Death Of Justice Antonin Scalia!

The death of the most right wing Supreme Court Justice, Antonin Scalia, in modern American history, offers Barack Obama and the Democrats a real opportunity to transform the majority of the Supreme Court, which has been with a Republican appointed majority for the last 44 years!

With the appointment and confirmation of Justices William Rehnquist and Lewis F. Powell, Jr. by Richard Nixon in January 1972, the beginning of the fourth year of his Presidency, we have had a Republican appointed majority, and the Democrats have only had a total of four appointments to the Court, as compared to the nine that the Republicans have had.

With nearly a full year until the next Presidential inauguration, there is no excuse for the Republicans to filibuster or to dismiss an appointment without just cause, and the Republicans are playing a very dangerous game in so threatening, within hours after Scalia’s death.  Public opinion is likely to reverberate against them if they follow through and create the longest delay in a Court appointment being confirmed.

The all time record is the 125 days between when Woodrow Wilson nominated Louis Brandeis, the first Jewish member of the Court, until his confirmation in 1916.  The second longest delay was when Ronald Reagan nominated Robert Bork in 1987, and his rejection by the Senate after 114 days.

So to say it will take more than the 342 days when the next President is inaugurated to gain a ninth Supreme Court Justice is totally preposterous, and delays so many decisions, and basically cripples the ability of the Court to do its job, its constitutional duty.

Already, the Republicans have shown they do not believe in doing the government’s business in the House of Representatives and the Senate, so are they now going to do the same with the Supreme Court?

Is this the way for them to convince the nation to give them responsibility for control of both houses and the Presidency, and also the Court for the long term future?

Obviously, the answer is NO, so the chance for a Supreme Court of nine members might very well be resolved with Barack Obama appointing a perceived moderate to the Court, which will be hard for the Republicans to refuse to confirm!

Barack Obama is our President for another eleven months, and constitutionally, he has the right and the responsibility to choose a new Supreme Court Justice, no matter how the Republican Party feels about it!

Long Term Political Projections For 2016 And Beyond!

As 2016 arrives tomorrow, some long term projections for the upcoming year politically.

Next December, we can see how accurate these projections are:

Donald Trump will NOT be the Republican Presidential nominee, and he will lose both the Iowa Caucuses and the New Hampshire Primary.  He will be a sore loser there, and will announce a third party movement, but will win NO states in November, but take away votes from the Republican nominee, similar to Ross Perot in 1992.

The Republican nominee for President will be Senator Marco Rubio of Florida, who will select Ohio Governor John Kasich as his Vice Presidential running mate.

Hillary Clinton will win the Democratic Presidential nomination, and will select Ohio Senator Sherrod Brown as her running mate for Vice President to blunt the effect of Ohio Governor John Kasich as the Republican Vice Presidential nominee.  And remember Ohio is the crucial state historically in the Electoral College, as NO Republican has won the White House without Ohio!

Hillary Clinton will become the 45th President of the United States , and Sherrod Brown will become the 48th Vice President of the United States, winning by a substantial margin in the Electoral College, keeping the 242 electoral votes of 18 states (Maine, Vermont, Connecticut, Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, Illinois, Michigan, Wisconsin, Minnesota, Washington, Oregon, California, Hawaii) and the District of Columbia, PLUS the following “swing states”—Ohio (18); Virginia (13)–thus insuring an Electoral College majority of 273 when 270 are required;  but also, in addition, the following:  Colorado (9); Iowa (6); Nevada (6); New Mexico (5); New Hampshire (4)–a total of 25 states and 303 electoral votes.

The only loss for the Democrats will be Florida, which will go to Rubio, a home state favorite, and taking away 29 electoral votes, from the 332 of Barack Obama in 2012 to the 303 of Hillary Clinton.  So Hillary Clinton will win 25 states, instead of the 26 that Obama won in 2012. The final electoral vote will be 303-235.

Hillary Clinton will name Vice President Joe Biden her Secretary of State.

Hillary Clinton will gain the opportunity to select FOUR Supreme Court nominees in her four year term, as follows:  Ruth Bader Ginsburg,  Antonin Scalia, Anthony Kennedy, Stephen Breyer–but of course, this cannot be proved to be correct until that next four year term is completed!

The US Senate will go back to the Democrats, gaining the seats up in Florida, Ohio, New Hampshire, Illinois, Wisconsin, Pennsylvania, and Missouri, going from 44 seats plus two Independents (Maine, Angus King; and Vermont, Bernie Sanders) to 51 plus 2, effectively 53 seats to 47 for the Republicans, from the present 54 seats for the GOP.  Senator Chuck Schumer of New York will be the Senate Majority Leader as a result.  The President Pro Tempore position will go back to Vermont Senator Patrick Leahy, the longest serving Senator with 42 years and another elected term beginning in 2017.

The US House of Representatives will go from 247 Republicans to 188 Democrats, to a gain of 17 seats, and a new total of 205 Democrats and 230 Republicans.  Congressman Paul Ryan of Wisconsin will remain Speaker of the House of Representatives.

So the line of succession will be President Hillary Clinton; Vice President Sherrod Brown; Speaker of the House Paul Ryan; Senate President Pro Tempore Patrick Leahy, followed by the cabinet officers, beginning with Joe Biden.

We shall see in a year how accurate my prognostications are!  Happy New Year 2016!

Mike Huckabee The New Orval Faubus, Ross Barnett, And George Wallace!

Former Arkansas Governor Mike Huckabee is rapidly becoming the new Orval Faubus, Ross Barnett, and George Wallace—a defiant Governor against the Supreme Court!

Faubus, Governor of Arkansas; Barnett, Governor Mississippi; and Wallace, Governor of Alabama—all vehemently opposed the Supreme Court decision on school integration of 1954 (Brown V. Board of Education), and refused to cooperate with integration, respectively, of the Little Rock, Arkansas high school; the University of Mississippi; and the University of Alabama—and mounted confrontations with the federal government, leading to Presidents Eisenhower and Kennedy to send the National Guard into those states to enforce the edicts of the federal courts.

None of those three Governors look well in American history, rather are seen as law breakers and demagogues, for opposing the Supreme Court decision.

Now Mike Huckabee stands out as a religious fanatic, a man who does not understand separation of church and state, and as a bigot in his attitude toward gays and lesbians.

His idea that the Supreme Court in Obergefell V Hodges is acting in a lawless manner is totally preposterous, but notice he does not oppose the Court when it comes up with a decision that he agrees with, which demonstrates his total hypocrisy, and his own phoniness about the teachings of Jesus, who never referred to gays and marriage in the Old or New Testament.

Huckabee has become a right wing theocratic demagogue, who seems to think taking such a stand will advance his Republican Presidential candidacy, but even Supreme Court Justice Antonin Scalia, who was against the majority opinion on gay marriage, says that no county clerk, such as Kim Davis, can use religious views to avoid her responsibility to do her job, as working for government is a civil job.

So either Kim Davis does  her job without discrimination, or she needs to be forced out of office, or thrown in prison until she agrees to obey the federal courts, which DO have the final say on all constitutional matters.

Marriage is not something to be voted on, but rather a basic human right, and prejudice and bias and homophobia must not be allowed to interfere with the right of two adults to marry!

The 10 Worst, Most Disastrous Supreme Court Justices Since 1900

The Supreme Court has had 58 of its 112 members since 1900, with 9 of them being Chief Justices, and 4 of those also having earlier served as Associate Justices.

It is more fun to discuss the greatest Supreme Court Justices since 1900, as done in an earlier blog post, but here are the 10 worst, most disastrous Supreme Court Justices, listed chronologically,

Willis Van Devanter
James Clark McReynolds
George Sutherland
Pierce Butler
Fred M. Vinson
Tom C. Clark
Lewis F. Powell, Jr.
Antonin Scalia
Clarence Thomas
Samuel Alito

The first four are known as the “Four Horsemen of the Apocalypse”, united against the New Deal, and causing Franklin D. Roosevelt to become engaged in the controversial Court Packing Plan of 1937. Van Devanter was appointed by William Howard Taft; McReynolds by Woodrow Wilson; and Sutherland and Butler by Warren G. Harding.

Vinson and Clark were appointed by Harry Truman, with judicial appointments one area that Truman was rated as poor in selection, despite other areas of strength in his Presidency.

Powell was selected by Richard Nixon; Scalia by Ronald Reagan; Thomas by George H. W. Bush; and Alito by George W. Bush.

Powell wrote a memorandum that had a long range influence, promoting the development of right wing think tanks, and forecasting the eventual Citizens United Supreme Court decision of 2010, granting corporations and wealthy individuals the right to engage in politics without any financial limitations. He saw those who wished to regulate business as dangers to unregulated capitalism, and argued for aggressive actions against any regulatory power by governments at all levels. This memorandum was sent before Powell was appointed to the Supreme Court, and was not generally known about until recent years, after his death.

So 3 of the 10 worst Justices were selected by Democrats, and the other 7 by Republicans, a total of 8 Presidents involved in these terrible selections.

24 Years Of Justice Thurgood Marshall; 24 Years Of Justice Clarence Thomas: The Contrast!

Hard to believe, but it has been 24 years since Clarence Thomas was nominated for the Supreme Court by President George H.W. Bush, with Thomas being chosen to replace the first African American on the Court, Thurgood Marshall, who had been selected 24 years earlier (1967), by President Lyndon B. Johnson.

Marshall had made it clear that he wanted to stay on the Court until a Democrat was elected President, but despite his desires, his poor health forced him to resign. Marshall stands out as having been a quality member of the Court, one of the top 15 Supreme Court Justices of the 20th century.

Thomas, the second African American in Court history, would face severe attacks on his competency and on charges by Anita Hill that he had sexually harassed her when she worked for him at the Equal Employment Opportunity Commission during the 1980s.

The Thomas nomination became a major controversy, and led to the passage of sexual harassment laws affecting all employees in America, both in government and out of government.

It also led to a bitter and close nomination battle, with Thomas winning his seat on the Court by the closest margin in modern history, 52-48.

It caused Thomas to become embittered, and he has expressed this bitterness toward liberals ever since, and he has pledged he will not leave the Court until he is 86 years of age in 2034, doubling his age of 43 when he came to the Court.

Thomas has made his mission on the Court to oppose civil rights and civil liberties wherever he can, despite the fact that he benefited personally from Affirmative Action, and his race helped him to gain his job, even though his accomplishments were far less than Thurgood Marshall. Many well qualified African Americans were passed over for Thomas, because he was an outlier, a conservative, who did not care about what had happened to people of his race.

So Thomas has been an extreme right winger on the Supreme Court, along with Antonin Scalia and Samuel Alito, but in many ways more hard right than even them, without the intellectual brilliance of Scalia for much of the time he has been on the Court.

Thomas has almost never asked questions in oral arguments, and his history on the Court is just about the least impressive of all nine Justices.

But at the same time, he has had conflicts of interest that should disqualify his Court membership, and his wife has been a big power player with Right Wing groups that present many conflicts of interest, but no concern or explanation or apology from Justice Thomas, who has no concern as to how he is perceived or reported in the news media.

Thomas has come across as arrogant, but also dense about discrimination against African Americans, Hispanics and Latinos, women, gays and lesbians, organized labor, and the environment.

Thomas is seen as certain to work against Affirmative Action, as in several cases in the past, despite the advantages he has had in his own life.

When one compares him to Justice Thurgood Marshall, it is clear that the appointment of Thomas was just about the worst decision President George H. W. Bush made in his term of office.

And if in the afterlife, someone can look down on the world, it would be clear that Justice Marshall, who was known for being blunt, would be furious that Thomas replaced him as the African American member on the Court, with no likelihood of his early departure anytime soon!