RUTHFULLY YOURS

Historically, many Supreme Court nominations made in a President’s final year in office are rejected by the Senate. That started with John Quincy Adams and last occurred to Lyndon B. Johnson.

It is critically important that the Senate hold pro forma sessions, since President Barack Obama would be able to make a recess appointment to the Supreme Court if the Senate goes out of session. Currently, there is a five-day recess this week and a two-week recess scheduled for April. There have been twelve such recess appointments to the high court. A recess appointment would last until the end of the Senate’s next session.

Historically, most presidents select a nominee within a week of a Supreme Court vacancy. However, there have been several lengthy vacancies when the Senate refused to play ball with controversial presidents or controversial nominees.

President John Tyler had a particularly difficult time filling vacancies. Smith Thompson died in office December 18, 1943. His replacement, Samuel Nelson, was in office starting February 14, 1845. That’s a vacancy of 424 days. Henry Baldwin died in office April 21, 1844. His replacement, Robert Cooper, was in office starting August 4, 1846. This vacancy lasted 835 days because Tyler could not get the Senate to work with him. During Tyler’s presidency, the Senate rejected nine separate Supreme Court nominations!

Most recently, Abe Fortas resigned May 14, 1969. His replacement, Harry Blackmun, was in office starting June 9, 1970, making the gap just longer than a year.

Several pending cases were expected to be 5-4 decisions. Crucially, the immigration (DAPA) case, United States v. Texas et al., and the mandatory union dues case, Friedrichs v. California Teachers Association, and the Little Sisters of the Poor Home for the Aged v. Burwell cases on the contraception mandate accommodation.

Decisions that are tied with a 4-4 vote have no binding precedent and the decision of the lower court is upheld. This would be good in United States v. Texas et al., because the lower court’s decision was that states have standing to sue against an Obama policy that muzzles states from enforcing immigration laws.

Congress has frittered away virtually every constitutional power save one: the power of the Senate to deny presidential appointments to the federal bench. If Senate Republicans expect conservatives to ever trust them on anything, then they must decline to consider Obama’s nominee to replace Justice Scalia.

There is precedent for this. In 1968, when Republicans were a Senate minority possessing only the power of filibuster, Everett Dirksen prevented Lyndon Johnson from appointing Associate Justice Abe Fortas to replace retiring Chief Justice Earl Warren and then appointing Homer Thornbury to take Fortas’s seat as an associate justice.

Senate Minority Leader Dirksen did not run the Senate or control any Senate committees. Republicans, in fact, held only 36 Senate seats, and several of these were leftists. Yet Dirksen was able to cobble together enough senators to prevent Johnson from filling a Supreme Court office during a heated election year. The left, of course, squealed and yelled, but it lost, because Senate Republicans and a handful of Senate Democrats stood firm.

If Everett Dirksen, who was only a moderate conservative holding a very weak hand, was able to thwart LBJ, who had been Senate majority leader before he was vice president and who knew all the ropes and all the tricks of the Senate, then Senate Majority Leader McConnell clearly has the power to do the same.

In fact, all McConnell and the Republican leadership have to do is to decline to consider any nominee appointed by Obama. State clearly that the Senate is exercising its constitutional power and, unlike Obama who presumes powers he does not have, that the power to confirm or deny a presidential appointment is at the heart of the Senate’s control of the Executive Branch.

With the passing of US Supreme Court Justice Antonin Scalia we stand at a very sober moment for our nation, a moment that finds the US Constitution – and the idea of constitutionality in general – in a very fragile state. With the make-up of the US Supreme Court existing on a razor’s edge between the conflicting ideologies of Progressivism (which views the Constitution as malleable) and Constitutionalism (which sees the document at a limitation on government) what happens in the next months will serve to chart the course for our country. The two paths couldn’t be more different: one a pathway to national demise.

I am want to recall a passage from a speech that Ronald Reagan gave in 1964:

“You and I have a rendezvous with destiny. We will preserve for our children this, the last best hope of man on earth, or we will sentence them to take the first step into a thousand years of darkness. If we fail, at least let our children and our children’s children say of us we justified our brief moment here. We did all that could be done.”

Today, with the passing of Justice Scalia, the Republican and Conservative members of the United States Senate have met up with their own “rendezvous with destiny.” They will soon be presented with a nominee to the US Supreme Court from President Obama, a Far-Left Progressive who has already seated two political activists to the Court. It will be the Senate’s duty – not their option, but their duty – to deny Mr. Obama another Progressive seat on the US Supreme Court.

Progressives by their very nature believe that the US Constitution is a flawed document; something to be improved, perfected and otherwise titrated to the needs of the times. That is anathema to what the Framers intended and history bears that out. The Framers intended for the US Constitution to be the “chains” that binds government to the service of the nation, not the service to the ideological and/or the few.

Thomas Jefferson is quoted as saying:

“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”