The Supreme Court: Constitutional Crisis!


The death of Justice Antonin Scalia has plunged the political world into turmoil.  According to The United States Constitution,  the President has the responsibility of  nominating a successor when a  vacancy occurs on The Supreme Court.  The Senate has the responsibility to advise and consent on the nominee.    The senate  Judiciary Committee considers the nominee first and passes their recommendation to the full senate. There has never been a time in our history when the senate has refused categorically to fulfill their required role.  Until now!


On the night of Scalia’s death, Mitchell McConnell, Republican Majority Leader of the Senate, said that the nomination of a successor should occur after the presidential election in November 2016. He vowed that   any nomination from Barack Obama would be blocked and  not acted upon.  Ted Cruz and Marco Rubio, presidential contenders agreed immediately, while Hillary Clinton, running on the Democrat ticket said from Colorado the same night, ‘ A call to delay a nomination is totally out of step with our history and our constitutional principles.’The battle was joined.


Antonin Scalia, the leader of the conservative  bloc of Justices, would find this entire scenario supremely ironic –or perhaps hilarious.  He had a devilish sense of humor.  Scalia  believed fiercely in the concept of Originalism, interpreting every word of  The Constitution exactly as it had been conceived and written by the  men who argued  throughout  the long hot summer of l787 in Philadelphia.  For Scalia, original intent  was  bedrock to  his  interpretation of all cases before the Court.  He wrote in elegant and often devastating  language, sarcastically assailing  the arguments of his colleagues if they dared to present a more “elastic” interpretation of wording or a particular passage in the Constitution.   Just Imagine his reaction to McConnell’s vow to disregard and block  the fundamental power of  the President to nominate his successor!


The exact words can be found in Article II, Section 2 of The Constitution describing “Power of the executive, with the Advice and Consent of the senate,  to appoint  Ambassadors, Ministers , Consuls and Judges of the Supreme Court…..” Perhaps this section should be required  reading  for the Majority Leader and the Republican candidates for President.


As the presidential campaign moves forward, all the Republican candidates have lined up with McConnell saying the next president should nominate a successor to Antonin Scalia.   They are banking on their party winning the election.  They argue that the will of the people should matter.  Of course, the will of the people elected Barack Obama by large margins in 2008 and 2012.  Hillary Clinton and Bernie Sanders have spoken out vociferously that the Constitution must be followed.  They cite the thirteen  times in our history when a President has named a nominee to fill a vacancy on The Supreme Court during his last year in office. This is not something new.  Ronald Reagan (Republican)  is the most contemporary , nominating  Anthony Kennedy , who was confirmed by a Democratic Senate.  There has never been a time when  the Senate refused to even consider the President’s choice.


There are  men and women whose names are being raised as possible nominees.  They include:  Sri Srinivasan ,  Judge on the influential Appeals Court of the D.C. circuit.  The 48 year old  son of Indian immigrants,  he was confirmed 97-0 in 2013 by the senate.  Stanford Law School.   He worked in the Solicitor General’s  Office for both George Bush and Barack Obama.  Jane Kelly,  51, Judge on U.S. Court of Appeals , 8th Circuit, confirmed 96-0 by the senate in 2013.   Harvard Law  School.  Long time public defender in Iowa.  Close to Charles Grassley, Chair of the Senate  Judiciary Committee.  Could help her reach a hearing. Adalberto Jordan,  54, Judge on U.S. C ourt of Appeals, 11th Circuit,  confirmed  94-5 in2012 by the senate.  Hispanic,  University of Miami School of Law. Clerked for Justice Sandra Day O’Connor.  Home state Florida has a senatorial election this year, important swing state. Paul Watford, 48, Judge on the U.S. Court of Appeals for the 9th Circuit.  African-American born in California. UCLA School of Law.  Clerked for Justice Ruth Bader Ginsburg. Confirmed 61-34 with nine Republicans voting in favor. Former federal prosecutor  who represented corporate clients  in private practice.


President  Obama has already nominated two highly qualified women who are now Justices on the High Court. Sonia Sotomayor and Elena  Kagan were confirmed by the senate after lively questioning by Republicans  on the Judiciary Committee.   If the Republicans now refuse to even allow the President’s nominee to meet with the Judiciary Committee, they could precipitate a nation wide uproar.   There are literally millions of  new potential voters who have been attracted to the Republican and  Democratic presidential campaigns this year.  Rallies have brought  thousands of young women and men into the political world.  What would be their reaction to this  obstruction of The U.S. Constitution.?  Would they be turned off from voting?  And older men and women voters –who are the bedrock of every campaign —would be shocked to the core.  Would they decide to stay home in November as a protest? One thing is for sure.  A Constitutional Crisis would reverberate from now to election day in November.


Here’s a prediction:  If McConnell sticks to his threat and does not allow President Obama’s nominee  to be considered by the Judiciary Committee, there will be a political TRIFECTA  in November 2016.   The Democrats will capture the Presidency by large electoral and voting margins.  The Senate will return to Democratic control with current “endangered” Republican senators losing their seats.  Many Tea Party seats in the House will return to Democratic candidates.


Epilogue:  Once the next President is installed, she or he will nominate a candidate to fill the vacancy on The Supreme Court.  The Democratic Majority Leader of the Senate will send that name to the Democratic Chair of the Judiciary Committee for their consideration.

Hillary Clinton vs. Bernie Sanders


Have you watched any or all of the Democratic Debates and Forums? There have been lively exchanges between Clinton and Sanders on substantive issues. The Republican debates featuring Trump, Cruz, Carson , Rubio, Bush, Christie and Kasich present a free wheeling, insult laden two hour exchange with very little discussion of important issues to voters. It’s mostly personal invective with The Donald positioned at center stage. Only John Kasich stays on a positive message about the state of the country and his accomplishments as Governor of Ohio.

Today’s blog is about the Democratic candidates for President of The United States. We are in the midst of Primary season to decide which of the two in the race will be the party’s nominee. First, let’s set the stage in a time frame. The 2016 Presidential election may be the most significant election in the country’s history. The Republicans are always looking back to the New Deal, hoping to roll back the Safety Net that has been in place since Franklin Roosevelt was president in the 1930’s. Their aim for decades has been to privatize Social Security and change Medicare/Medicaid into a voucher program. They have stated these goals in many presidential races in their party platforms and speeches. It would be a safe bet to ask if most young people today –eligible to vote at eighteen,- know this history. What’s your guess?

When Barack Obama campaigned for president in 2007, he was a young Black senator from Illinois with an exciting message of “ Hope and Change.” Young and old voters flocked to him. He stressed that “We are not Red States and Blue States. We are the United States of America!” Obama went on to win two terms in office with large electoral margins against a fierce Republican opposition that had vowed to make him a one term president on the very night of his first victory. Barack Obama did bring significant change. He led the country back from the Great Recession with the Stimulus Program, rescue of the auto industry and successive months of job growth from 2008 to 2015. His greatest legislative accomplishment, The Affordable Care Act, brought health care to over seventeen million men, women and children who had no health insurance. However, The Republican controlled House has voted to repeal it sixty times. And one third of Republicans are Birthers, still insisting he was born in Kenya. Most Republican candidates vow to repeal Obamacare their first day in office.

Our next president will encounter the deep partisanship that exists now in Congress and the country. He or she may have the responsibility of nominating two or three justices to the Supreme Court. She or he will also be Commander in Chief, making crucial decisions to keep the United States safe from Isis and other terrorist groups in the Middle East. Which Democratic candidate is better equipped to meet these significant challenges? Bernie Sanders has stated that his aim is “radical, revolutionary change.” Hillary Clinton has stressed that her aim is “to get progressive goals done and to preserve Obama’s legacy.”

Let’s consider their accomplishments and promises in the framework of how change has actually happened in this country. 1776 is the date of the one and only revolution in our history. We fought the Revolutionary War against Britain and formed the United States of America. Since that time, all the major changes that have occurred have been evolutionary, most over decades and some over centuries. If one were to ask Native Americans, African Americans, Hispanics, , Asian Americans…..mature women, gay people or poor people how change happens and how long it takes, what do you think they would answer? If they know their history, they would say a long, long time. White men wrote The Constitution that established our form of federal government during the long hot summer of l787. It has been described as “elastic” since the Courts can interpret the laws passed by Congress. The President as the Executive, is charged with putting the laws into effect. He or she also has the responsibility to set the goals and priorities for the nation in the annual State of The Union message.

Bernie Sanders, 74, was the Mayor of Burlington and has served in the House and Senate representing Vermont for 35 years.. He describes himself politically as a “Democratic Socialist” and has always supported progressive laws to better the lives of the middle and working classes. He is part of the Democratic Caucus and served as Chair of the Senate Veterans Affairs Committee for two years. After scandals broke in the Veterans Affairs Department, he did not start hearings as the House VA committee did. When he finally introduced comprehensive and costly legislation, it failed to get Republican votes to pass. His emphasis in the current campaign is on “income inequality, breaking up the big banks on Wall Street, taxing the one percent of billionaires at the top, free college tuition for all” and replacing Obama care with “ single payer health care universal system.” His rhetorical style and charged enthusiasm have captured thousands of admirers at rallies throughout the country. Many are young college students who are his most vociferous admirers. They have “the Bern”!

Hillary Clinton, 68, has been an activist in political life since earning her Yale law degree. She served as First Lady of Arkansas when Bill Clinton was Governor, followed by First Lady of the United States when he was President for two terms. She led the health care program during his first term, but it did not succeed in Congress. She made history in China when as First Lady, she said, “Women’s rights are human rights!” Hillary entered politics herself when she ran and served as Senator from New York State for two terms. During that time, she worked closely with Senator Ted Kennedy to create the CHIP health program for nine million children. She ran for president in 2008 but lost to Barack Obama, who then chose her to become Secretary of State. In that crucial position, she traveled to 112 countries across the globe, rebuilding our image that had been damaged by the Bush administration Wars. She held that position through Obama’s first term as a trusted advisor in the decision to hunt and kill Bin Laden. She then led the complex diplomacy that led to sanctions and the final Iran Nuclear Deal Her emphasis in the current campaign is on “getting things done to improve the lives of middle and working class Americans.” Her programs include: “free college tuition, but not for rich families, controlling not only big banks, but shadow banks and pharmaceutical companies, free pre-K education, and gun control measures nation wide. ” Most important, she will “build on the Affordable Care Act to achieve universal coverage for all Americans” She is strongly against starting all over as Sanders proposes with a national debate about health care.
When one reviews the accomplishments and promises of both candidates, what stands out clearly is that Bernie Sanders is an idealist, setting forth dramatic goals that can inspire and draw fierce loyalty. Hillary Clinton is an experienced pragmatist , setting forth achievable goals that will better the lives for all Americans.

One observer described Bernie as the “cheer leader whipping up the enthusiasm” and Hillary as the “quarterback scoring the points and winning the game.”