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Monday, February 15, 2016

Appoint and Confirm: The New Hot Political Potato

The recent death of Supreme Court Justice Antonin Scalia has certainly whipped up a firestorm of partisan politics. Republican Mitch McConnell almost immediately announced that the GOP controlled Senate will not confirm any appointee that President Barack Obama submits to them. Imagine that. The Republicans will not act to stabilize the country, the legislature or the Constitutional issues until they get their way.

People like Lindsey Graham have piped up with the rhetoric that no confirmation should be made in an election year even though Ronald Reagan, for one, did submit and have confirmed his conservative appointee in an election year. GOP Presidential hopeful, Ted Cruz, has already publicly announced that he is willing to appoint a Justice who is equivalent to the deceased Scalia in his conservative opinions.

Radio hoax and Internet purveyor of endless conspiracies, Alex Jones, has gone as far as to suggest that President Obama had Justice Scalia murdered in order to leave office with a legacy of change by flipping the 5-4 split of the court toward Liberal interpretations. I'd like to suggest if that conspiracy were true it should have been implemented 6 or 7 years ago and we would have avoided all the anti-human and pro-corporation rulings we will have to live with for decades to come. I call "Hogwash" on Alex Jones' tinfoil rhetoric.

The Senate will be taking a huge gamble in stymieing the confirmation of one or two appointees that Barack Obama could submit for the vacant position. They will be gambling on winning the White House in November 2016 in order to not have Hillary Clinton or Bernie Sanders inherit the duty and make whatever Liberal nomination they choose. If the GOP succeeds in tossing Obama appointees until November, they risk making major alteration to what the voter turnout and voter affiliation will otherwise be. The calculation will need to be very carefully considered and not be predicated on spurious polls.

Whoever the next President is, he or she will undoubted have the duty of appointing two additional replacement Supreme Court Justices. Not resolving the Scalia vacancy now, might lead to a GOP loss in November and thereby the opportunity to appoint the next two Justices. By age alone, Thomas - R and Ginsberg -D are the two most probable next vacancies. A President replacing both of them would not alter the pre-disposition to opinion of the 9-member court. Which ever way the election turns out, this Supreme Court Justice confirmation process WILL alter the outcome. Place your bets and take your chances.

Meanwhile, notwithstanding the reluctance of the 8-member court to address major issues, the math shows only a small difference. Any case presented will need to be a 5-3 to pass or reject the issue at hand. "In the event of such a tie, the court typically issues what's known as a per curiam decision. The opinion in such a decision is issued under the court's name, as opposed to consisting of a majority and a minority opinion." ~  This typically means that a lower court ruling stands.

However, as with several recent rulings of the court, the 5-4 vote included a defection from the Conservative camp to side with the Liberal minority. Those defections were rarely made by Scalia anyway. Getting one of Kennedy, Thomas or Alito support is all which is needed to rule in the Liberal direction.

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