WASHINGTON, February 15, 2016 – When Harry Reid was still the Democratic Majority Leader of the U.S. Senate in 2013, he pushed through a Senate rule change the media called the “nuclear option.” It allowed for the confirmation of presidential nominees to the federal bench with a simple majority vote, not a 60-vote super-majority as before.
President Obama has used that Senate rule change to pack the lower courts with justices friendly to the expansion of federal power through novel interpretations of law rather than through the constitutionally mandated legislative process.
Harry Reid’s nuclear option, however, does not apply to presidential nominations to the U.S. Supreme Court.
When Republicans regained control of the Senate in 2014, it was thought they would rescind Reid’s nuclear option. GOP Sen. John McCain (R-Ariz.) told The Hill that if his Republican colleagues did not do so, “then disregard every bit of complaint that we [Republicans] made… I’m stunned that some people want to keep it.”
But the new GOP chairman of the Senate Judiciary Committee, Sen. Chuck Grassley (R-Iowa), said he would rather leave the nuclear option as it stands.
“An immediate return to the prior nominations standard under Republican control would only reward Democrats for their misdeed and – since they have reaped the benefits but borne none of the costs – Democrats would have further incentive to engage in procedural abuses,” wrote former Judiciary Committee chairman Sen. Orrin Hatch (R-Utah) in an op-ed for Politico.
The issue of appointments to the federal bench has heated up considerably since last Saturday’s shocking announcement that Associate Supreme Court Justice Antonin Scalia passed away while vacationing in Texas.
That same day, President Obama said, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.”
But Republican Senate Majority Leader Mitch McConnell said the “American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
And with that, the presidential election of 2016, which the media’s talking heads insisted would center on “income inequality,” has suddenly crystalized into one that will decide which candidate is best suited to choose the next Supreme Court majority.
Currently, the high court is evenly split between liberals and conservatives.
As the late Justice Antonin Scalia lamented in various written opinions, the high court has devolved into an authoritarian institution whose “decrees” rob “the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves…. A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” said Scalia.
And that “committee,” he insisted, is today “the Ruler of 320 million Americans coast-to-coast.”
Missing from the raging debate on a possible replacement for Scalia is the fact that Congress and not the president is in the driver seat when it comes to the courts.
The Constitution’s Article III, Section 1 states:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (emphasis added).
The Judicial Act of 1789 installed six justices on the Supreme Court. But during the presidency of Abraham Lincoln (1861-1865), Radical Republicans in Congress (the Tea Party of their day) increased the number of high court justices to 10.
This gave Lincoln a Supreme Court majority to block the justices who in 1857 ruled that no black American had legal standing before any court in the land – the Dred Scott vs. Sandford ruling.
In an ill-conceived gesture of national unity, Lincoln ran for a second term as an independent under the National Union ticket, choosing Democrat Andrew Johnson, a former slave owner, as his vice president.
After Lincoln’s assassination, Congress’ Radical Republicans feared President Johnson would attempt to undo Congressional plans for Southern Reconstruction by appointing justices that would reinstate the institution of slavery through judicial fiat.
However, as Supreme Court justices died, Congress reduced the number of seats on the high court from ten to seven, thus denying Johnson an opportunity to fill the vacancies. They also occupied the president with an impeachment trial.
Meanwhile, President Obama can nominate whom he pleases to the high court. But Congress and its Republican majority has the power to decide whether they shall sit on the Supreme Court… and how many.