OPINION COLUMNS

Senators are committing miscarriage of justice

By Joy Carrico | Published Saturday, May 21, 2016
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Supreme Court justices have political views just like everyone else, and they are often affiliated with political parties. Once appointed, they cannot be removed without an impeachment, and they have no term limits. Thus, they continue to impart their view of things long after the politicians who put them on the bench are retired, dead or otherwise no longer making their own footprints. Therefore, the president’s power to appoint, subject to the approval of the Senate, Supreme Court justices is an important one.

Joy Carrico

Joy Carrico

It also really matters when a justice decides to hang up his or her robe. If possible, he or she will wait to retire until the make-up of Congress and the president seems assured to appoint someone like-minded to the vacant seat.

Justice Antonin Scalia, who died suddenly this past February, was unable to time his departure from the bench; and shifting the balance of power in the Supreme Court is why his unexpected death is such a big deal.

Scalia was not only conservative, he was a conservative’s conservative, the bane of the liberal-minded. And the president is a Democrat. Anyone nominated by a Democrat is bound to be much less conservative than Scalia, although I pause here to argue that almost ANYONE nominated by ANYONE is less conservative than Scalia.

Before Scalia died, there were five Republican appointments and four Democrat appointments on the Supreme Court. The balance of power was 5-4 in favor of Republican appointees. An Obama appointee would shift the balance to 5-4 in the other direction. This is undesirable to Republicans. Thus, despite the fact that Obama has put forth a nominee for consideration, the Republican senators swear they will refuse to approve any nominee put forth by Obama, claiming the next president should make that choice.

But this waiting game is costly.

There are an odd number of justices for a reason. No ties. A tie will merely affirm the lower court’s ruling so whoever won last, wins. We currently have eight justices, four Republican appointees and four Democrat appointees. They were bound to deadlock and indeed have already done so, in a labor case out of California. Because they couldn’t come to a decision, the decision of the lower court, which in this case is the 9th Circuit Court of Appeals, was upheld. Since the 9th Circuit decided in favor of labor unions, labor unions won the case.

There might as well be no Supreme Court decision at all.

Taking a look at the larger picture does not make the problem look less significant. The federal court system is a pyramid. Many district courts hear cases, which, if appealed, move up to one of 13 Courts of Appeals. If again appealled, they go to the Supreme Court. Each Court of Appeals has its own character. The 9th Circuit Court of Appeals has a reputation for being wildly liberal, and the 4th Circuit has a reputation for being staunchly conservative. At any rate, each of these Courts of Appeals have no jurisdiction to overrule the decision of another district’s Court of Appeals, nor are they required to follow it. So, it is inevitable, with the Supreme Court unable to decide hot-button topics, that contradictory decisions of the lower courts on these controversial issues will all stand, even if they are polar opposites.

If 13 courts are making decisions about the same issues in different ways, it won’t take long for this country to be all over the map on various controversial issues. We need a granddaddy court that has the power to pull everyone together. And we have one …. usually.

The nomination and approval process of a Supreme Court justice takes time. Even if Obama’s nominee were approved, this year’s term is well underway. The next term starts in October and will be three months in when a new president is inaugurated. Even if the next president nominates someone right away, it will be spring before the Senate could look at putting a ninth justice on the bench. That would undoubtedly place next year’s term in the same predicament it is in now.

Two years of an ineffective Supreme Court. And for what, exactly? So that the next president can choose who’s nominated?

And who might that be?

If the Republican senators would take a look at our presidential hopefuls, they might notice that their odds are better approving Obama’s guy than waiting for whomever Clinton, Sanders or Trump might suggest take the job.

In light of the Republican senators’ refusal to take a swing at Obama’s pitch, Obama pitched an easy one.

Obama’s nominee is a middle of the road guy. He is reported to be a very palatable choice for both Democrats and Republicans. They’re unlikely to get so lucky with Clinton or Sanders.

And who on this earth hedges their bets, hoping Trump will come up with a better option? Trump was recently reported to have promised to appoint a pro-life justice to the Supreme Court in order to win over pro-life Republicans, who don’t much like him. So, with Trump, the next justice is a bargaining chip, used to secure his nomination. That doesn’t seem like a very good mountain to die on for these senators; protecting Trump’s power to sell a Supreme Court nomination to the highest bidder.

And what do the Republican senators think will happen the next time a Republican president nominates a justice? Democrats are going to return the favor in kind. Politicians are not known for taking the high road.

When digging my heels in, I might reconsider my stance if I discover I’m standing in quicksand.

If they don’t already, they will come to regret this stall tactic, probably multiple times.

In the meantime, we, the people, have a Supreme Court that cannot make the hard call.

Joy Carrico is a Messenger graphic designer.

One Response to “Senators are committing miscarriage of justice”

  1. Rusty White says:

    WELL SAID!!!

    The voters will hold “ALL” accountable for this unneeded delay, as they should! Come election time there may be a lot of new faces! Waiting while trying to “rig” the court in their favor, is harming our country, and each and everyone of them need to be thrown out of office, PERIOD!!! Those that put their party BEFORE the good of this nation are a DISGRACE!!!

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