Saturday, February 13, 2016


As the nation mourns the passing of Antonin Scalia, the senior Justice on the United States Supreme Court, the people of our great nation are poised to witness the sorry effect of one of the greatest flaws in our sacred Constitution.

Article 2 of the United States Constitution provides that the President shall nominate, and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court.

Republicans are already hollering that President Obama should not nominate a successor to Justice Scalia, but should leave it to the next President to fill the vacancy.

And, guess what, Democrats are urging and expecting the President to get on with his duty to fill the vacancy post haste.

Everybody knows what is at stake. Scalia was the leader of the conservative wing of the Court, which in recent years, has been able to muster a tenuous majority.

I doubt that any of the Founders of our nation had any idea how partisan the Supreme Court would become, or how the dichotomy between activist and traditionalist decision making would define the work of the Justices.

Because the Court has become such a significant player in the establishment of national public policy, its role is now widely understood to be political. What the Constitution describes as judicial power is now raw political power, and because it is, there will be a prolonged, nasty, partisan political battle over the appointment of Justice Scalia’s successor.

I was an admirer of Justice Scalia. I agreed with his philosophy and with most of his opinions. I grieve for our nation at his death, and I would certainly prefer to see another jurist of his bent seated in his chair.

But I don’t like or approve of what I think is about to happen. I smell a nasty battle already brewing in the United States Senate. It is the sworn duty of the President of the United States to nominate a candidate to succeed Justice Scalia. And the Republican controlled Senate is poised to pounce on whoever he sends.

I know he will nominate a liberal. We all know it. That’s his philosophy and that’s his prerogative. I don’t like it. I don’t think Justices of the Supreme Court should be political appointments chosen to advance the agenda of the Presidents who appoint them.

But that is what our system permits, and that is what Presidents of both parties do. And that is what controls the decision of the Senate as they go about the sticky business of advising and consenting.

It’s all politics. Partisan politics. It does no honor to the memory of Justice Scalia or to the history and prestige of the Supreme Court, but the morning line will give long odds that the confirmation process will not hang fire until 2017.

That means the third branch of our federal government will be effectively shut down for eleven months.

It doesn’t have to be that way. It shouldn’t be that way. Our constitution should provide a method of non partisan nomination of Supreme Court Justices. Senator Sam Ervin of North Carolina – a Democrat, by the way – advanced the proposition that Supreme Court Justices should be appointed from a list of nominees presented by the Chief Justices of the fifty State Supreme Courts.

The Congress isn’t about to provide for a non partisan court. They are all partisans, and their partisanship trumps their citizenship every time. Even when the other guys are in the majority, the partisans on the short side of the aisle salivate about some day having their turn to rule the roost.

Of course, there is nothing to prevent the President of the United States from inviting the fifty State Chief Justices to suggest a panel of nominees for his consideration in filling the Scalia vacancy.

Barack Obama could do that with one phone call and assure himself of a favorable legacy by setting a precedent of non partisan appointments to the high court. They might even send him a name that Justice Kagan would applaud.


  1. Justices Kagan, Sotomayor, and Ginsberg would approve a mannequin if it were nominated by Obama. I don't believe they ever really consider the law when rendering opinions.

  2. It will be interesting to see how the current Congress deals with this. With Republican majorities in the House and the Senate, this will be a litmus test about how well they deliver the promises many of them made to get elected.

  3. Interesting proposition; likely a very good idea given the GOP reaction to Justice Scalia's death. Ironic, Scalia being a strict constructionist, that the GOP have injected the notion of a "lame duck" presidency as grounds for the President to abdicate his sworn duty. I just read Article II, Section 2....didn't notice anything but a clear Presidential duty to appoint, with advice and consent of the Senate, Judges of the Supreme Ct. (not appoint and have the Senate reject before the nomination is made (reminds me of the tennis player who calls out before the ball hits the baseline). It appears, as readers of this blog likely already knew, 2016 is more an election of the Supreme Ct. and less about the Presidency. Just listen to the --- "loss of religious freedom"??? Fear-mongering, our Democracy has been reduced to fear-mongering...sad!

  4. The most disturbing element is Scalia's murder. We must assume it was murder as he had a pillow over his head, no photographs of the undisturbed scene were taken, no autopsy was performed, and there wasn't even an examination by an official before conflicting causes of death were pronounced.
    When anyone is found dead, especially a person of notoriety, all proper means of proving natural death must be performed or murder is assumed. That is the present situation in the America today. Murder of 3000 and evidence hauled away, or of one person who is then embalmed.. we are ruled over by murderers.

  5. Hi, Uncle Tom. What do you make of the Washington Post's argument that, by not acting, the Senate is waiving its right to advise and consent?