Some advice: Don’t consent

August 4, 2007

Guest Post by Morbo

Although there has been much speculation about the health of Chief Justice John Roberts, I’m more worried about another member of the high court. Every day I wake up worrying that I’ll unfold the paper and see a headline reading, “Supreme Court Justice Stevens Announces Retirement.”

John Paul Stevens is 87 years old. Mentally and physically, he is in great shape. We should all be so sharp when we’re 87. But 87 is, let’s face it, rather old. The man was put on the court by Gerald R. Ford.

President George W. Bush has already messed up the Supreme Court with the appointments of Roberts and Samuel Alito. The last term was disaster, as the court majority engaged in what it considered a fun game of overturning precedent without admitting it was overturning precedent. It’s bad now. One more Bush appointee means it will be bad for a generation.

So I say he doesn’t get one. Article II, Section 2 of the Constitution states, “The President …with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court….”

The Senate must confirm Supreme Court nominees, and I see no reason why they should, if another seat becomes vacant. Both Roberts and Alito testified during Senate confirmation hearings that of course they respect the doctrine of stare decisis — the idea that you don’t just overturn prior cases willy-nilly. They then proceeded to overturn prior cases willy-nilly.

This has upset Sen. Arlen Specter, who has talked about reviewing the confirmation hearings of both Roberts and Alito. Let’s be honest: We all know nothing will come of that. At the same time, Sen. Chuck Schumer is talking about being less accommodating next time, if there is a next time.

Why be accommodating at all?

Why not just tell Bush, “You don’t get another nominee. You had two chances and you sent two liars up here. We’re not inclined to take another one.” Democrats control the Senate Judiciary Committee. They need not schedule hearings or votes on any nominee.

The Supreme Court can hear cases and issue decisions with eight members for one term. (In the case of a tie, the lower court ruling stands but no precedent is set.) We’ll have a new president in January of 2009. That person can fill the vacancy as one of his or her first official acts.

How would the people react to this? I think they’d welcome it. The overriding message of the 2006 elections was, “Stop this madman.” Polls show that people believe the Supreme is out of whack ideologically. Many don’t favor letting Bush mess up the high court the way he has messed up everything else.

Can it be done? Sure. Putting aside the question of the Judiciary Committee, it still takes 51 votes to approve a Supreme Court justice. Of course, the Democrats have a few week reeds. (I wouldn’t count on Ben Nelson.) But the party can lose a few votes and still block a nominee by simply not scheduling a vote or through judicious use of the filibuster. The Republicans, who now love the filibuster, couldn’t complain about that, right?

We will be shed of Bush on Jan. 20, 2009. The American people effectively fired him last November. The Democrats have no obligation to let this lame duck louse up the Supreme Court for the next 30 years.

They need not schedule hearings or votes on any nominee.

No one should underestimate Bush using his power of interem appointment to put
someone truly horrendous on the court for a term.

When you don’t care about the rules, you can’t lose.

  • Luckily, I don’t think Stevens will retire until after Bush’s term, when there will hopefully be a Democrat in the White House. Good to hear, then, that Stevens’ health is holding up!

    But, yes, I completely agree with your assessment, CB.

  • Sen. Leahy are you listening? I hope so. Best idea since impeaching Gonzales.

  • Right now, three youngest justices are staunch conservatives, all 60 or younger. For liberals to assume a majority that lasts more than a few years, 5 of the remaining 6 would have to be appoointed by a Democratic president. Not likely given recent history. Democrats and independents who don’t take this into consideration in the next few presidential elections do so at the nation’s peril — as do any Democratic candidates for president. To my mind, this is just one of many reasons why Dems need to run against conservative ideology as a whole in addition to the conservative candidate.

    In the meantime, I’m inclined to agree with Morbo. If Bush gets another appointment, the country we grew up in could be reduced to a fairy tale.

  • As the recent rollover on warrantless surveillance attests, the Senate is gutless and powerless, and Bush will continue to operate unfettered until his last day in office. Don’t look for help from the Senate. You might as well erase the word “privacy” from the American vocabulary, and get used to living in a society where you share your every waking moment with your government – because you know the next president is going to want to keep those powers, once established. The only alternative is to dissolve the entire government and start over from scratch.

  • Roberts won the Nancy Reagan annual award for fatuousness with his statement in the Affirmative Action Cases by saying, “The way to end racial discrimination is to stop racial discrimination.” In other words, “Just say no.” Brilliant. Alito is a stooge of the U.S. Chamber of Commerce and big bidness, Scalia is an arrogant SOB who belongs in the College of Cardinals not SCOTUS. In the Abortion case, Kennedy patronized women insultingly by implying that the old men on the Court know better what’s good for women than the women and her doctor. Presumably, when Kennedy gets sick he calls his lawyer not his doctor.

    What is even more mind boggling is that Uncle Clarence Thomas is probably the only African-American in the U.S. who believes the Dred Scott decision was rightly decided. In other words, Thomas agrees with a Supreme Court decision that ruled that Afro/Americans were not U.S. Citizens and that slavery could continue to exist.

    Most of you know about the Lilly Ledbetter case but it takes the cake and demonstrates just how ethically twisted and morally repugnant are the values of these Conservative Judges. For twenty years Ledbetter was cheated out of money she earned being paid less than other managers of her level, some even with less senority. Yet she never knew this, and Goodyear’s employment policies forbid revealing what managers were being paid. She had no way to find out she was being cheated and never knew or suspected she was being cheated. When she finally got an anonymous tip and filed her discrimination suit and won, Goodyear took the case to the SCOTUS which ruled against her. Now think about their reasoning in this. The law says Ledbetter had to file eighteen months from the time when the pay discrimination began. But she didn’t know when it started or even THAT she was being cheated.and there was no way to find out. Therefore the Conservatives said “Tough shit” the law says eighteen months. She filed immediately when she learned, after twenty years, that she was being cheated but the Conservatives said, “Sorry the law says you had to file with eighteen months of when the discrimination began no ifs, ands or buts. In other words, these fine upstanding judges said it was perfectly acceptable and even legal for Goodyear to cheat Ledbetter out of thousands of dollars she earned, as long AS LONG SHE DIDN’T KNOW SHE WAS BEING CHEATED!!!! What kind of morality produces such values? Those are the values of a thief, a swindler or a con artist. Those are modern Conservative values.

  • beep52 said ‘To my mind, this is just one of many reasons why Dems need to run against conservative ideology as a whole in addition to the conservative candidate.’

    Absolutely right! Getting bush out HAS to be just the beginning. The right is in this for the long haul and they are pushing ideas that should be thoroughly discredited by now. Democrats have got to get thick skins and quit backing down because they might be called nannies, appeasers, wimps, socialists, communists, yada, yada, yada. If they cant get the people behind them now, they may never. It really seems like the people are begging for them to take a stand.

  • I think this is a great idea. But to soften the potential public perception of obstinance, the Dems should offer a short list of judges they would consent to, emphasizing those judges qualities and mainstream jurisprudence, and leave it on Bush to take the Dems’ recommendations or to leave the court with eight justices. It’s win-win, the Dems get the nominee they want, and they have a better chance of painting Bush as promoting extremists to the bench.

  • For twenty years Ledbetter was cheated out of money she earned being paid less than other managers of her level — R.T.Thaddeus, @7

    I’m surprised how little it’s mentioned, but Ledbetter got shafted *twice*, even before getting screwed once again by the cons in SCOTUS. First time was directly, by being paid less than male managers — that’s what everyone thinks about. But by paying her less, Goodyear also saved the money it should have been contributing to her Social Security and she herself would have been contributing less. Which means she’ll have much less to retire on than she’s entitled to. And given that women tend to live longer than men, she’s likely to depend on that retirement fund *more* than the male managers.

  • Stevens has hired court clerks to work for him through 2008, so it is highly unlikely that he will resign before Bush is out of office.

  • I don’t get it. If Justice Stevens leaves the bench and the Senate refuses to confirm another Bush nominee wouldn’t the conservative majority still be five justices? Why are five to three votes next term any better than five to four?

  • It’s so sad it’s almost laughable. What you say is right on except you can’t count on the Democrats to do any of those things. Bush would demand his nomination be appointed within the next week and Dems would come through.
    Diane Feinstein cast the tie breaking vote, 10-9 with Republicans, voting against her own party, to get that racist, corporate lackey, republican nominee, Southwick passed through the committee and onto the Senate floor for approval. She claims he only made one mistake and one mistake doesn’t make him a racist. And who told her this…Trent “run for your lives, head of the obstructionist republicans in the senate” Lott. Trent Lott she believes more than her party. The same Diane Feinstein who had to have “caging” explained to her by Monica Goodling(which she should have known before Goodling appeared before congress so she could grill her about this illegal tactic used to suppress democratic voters). Yes the “on the ball” Feinstein who gets her advice from Trent Lott. The same Feinstein who went against all of the civil liberties groups to allow another Bushie to get closer to another seat on an appeals court district of MISS.
    These are typical of what we can expect from Senate Dems to block a SC nominee?
    Just like everyone else, when it comes to Democratric judgment and leadership making and standing up for the right decisions, we get the wringing of hands and the gnashing of teeth. We all know what they shoulda’ done. But they never do.

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