Tag Archives: Supreme Court of the United States

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SCOTUS: The Nuclear Option is Not Enough

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U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia)

On January 31,  president Donald Trump nominated federal appellate judge Neil Gorsuch to fill a vacancy on the US Supreme Court created nearly a year before by Associate Justice Antonin Scalia’s death.

More than two months later — nearly 14 months since  Scalia’s passing and after 13 months of Republican stalling and refusal to even consider former president Barack Obama’s nomination of appellate judge Merrick Garland — the US Senate is finally set to vote on Gorsuch’s nomination once it clears a final procedural hurdle (more on that below).

Unlike most politically engaged Americans, I have no strong opinion on the character or qualifications of Neil Gorsuch (or, for that matter, Merrick Garland). Because they’re appointed for life, Supreme Court justices tend to develop minds of their own rather than slavishly fulfilling the wishes of the presidents who nominate them or the parties they claim affiliation with.

I do, however, have strong and very negative opinions on the melodrama attending the whole process.

Chief Justice John Marshall was nominated to his position on January 20, 1801. The Senate stalled, declining to confirm Marshall and pushing president John Adams to substitute someone else. The matter dragged on … for seven whole days before a vote. Marshall took his seat on the court less than two weeks after Adams asked him to serve.

Two weeks in 1801, when news traveled at the speed of horse. Fourteen months in 2016-17, when news travels at the speed of light. What’s wrong with this picture?

What’s wrong with it is that the Senate is a dilatory, time-wasting, procedurally hidebound body that these days walks (at a snail’s pace) every action of significance through multiple hearings in front of various committees before acting.

The final procedural hurdle I mentioned above is called “cloture.” It’s a vote to end debate, wrap the matter up and give Gorsuch the Senate’s final,  for real, thumbs up or (or down).

Under current Senate rules cloture requires 60 votes. Republicans, with a bare majority in the Senate and no hope of winning cloture, are threatening “the nuclear option” — a rules change, which only requires a majority, to make cloture itself a mere majority vote.

I don’t think the “nuclear option” is enough. I’m with MacBeth: “If it were done when ’tis done, then ’twere well It were done quickly.”

Instead of changing the cloture rules, why not change the entire confirmation procedure? Put a hard deadline in the rules: On the tenth day following nomination, the nominee receives an up or down vote of the full Senate, period, no exceptions.  Pre-vote committees get that long, and no longer, to do their jobs.

The Constitution calls for the Senate’s “advice and consent” on presidential appointments, not for months or years of screwing around.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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SCOTUS: Amply Serving Law Enforcement’s Interests versus Society’s

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U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia)

On June 23 the US Supreme Court ruled, in Birchfield v. North Dakota, that police officers may require suspected drunk drivers to take breathalyzer tests without warrants as required by the US Constitution’s Fourth Amendment and under criminal penalty should they refuse. The court did go so far as to leave the constitutional warrant requirement intact for blood tests. Associate Justice Samuel Alito, writing for the majority, lays out the chilling logic for differentiating between the two:

“Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation. ”

Searching the shed behind my house would certainly be “significantly less intrusive” than searching my closet or requiring me to open the lock box in which I keep important personal documents. Does this mean that the police should be free to poke around in my shed without procuring  a warrant based on probable cause to believe I’ve committed a crime, if doing so happens to “amply serve their interests?” No, it doesn’t. The Fourth Amendment’s prohibition on unreasonable searches and seizures isn’t there for the convenience of law enforcement. It’s there to protect everyone else’s rights from abuses BY law enforcement.

And the thing is, it’s never been easier for the cop on the street to get a warrant within minutes, or to prove that the warrant application is (or was) justified. Most jurisdictions have  judges  “on call” to handle warrant applications 24/7. Between radios and cell phones, police officers are almost never unable to communicate with their departments or with those judges. Cell phone video, dash camera video and, more and more lately, body camera video are all available for reference to establish that probable cause exists (or, in retrospect, existed).

Laws requiring drivers to acquiesce in breathalyzer tests absent warrants — as well as other unconstitutional excesses such as random “DUI checkpoints” where drivers are stopped and interrogated absent any reason at all to believe they’ve committed crimes — aren’t about fighting drunk driving or making the roads safe.

These laws are about making law enforcement’s job easier. Which sounds nice, but gets things backward. A peace officer’s job is to keep the peace by the rules, easy or not. Absent those rules, cops become the public’s enemies rather than its servants.

These laws are about greasing the squeaky wheel. Mothers Against Drunk Driving (MADD), a tired special interest group that has long since fulfilled its founder’s purpose, is now mostly interested in keeping its revenues (more than $30 million per year as of 2013) coming by lobbying against the rights of those Americans who aren’t among its 400-plus employees.

And yes, these laws are at least a little bit about reminding the serfs just who’s in charge.

What these laws are not is constitutional. And that should be the only thing the Supreme Court considers in its deliberations.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Election 2016: The Courtpocalypse and How to Delay It

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English: President Barack Obama and Vice Presi...
English: President Barack Obama and Vice President Joe Biden with the members of the Supreme Court and retiring justice David Souter (Photo credit: Wikipedia)

Presidential election campaigns tend to follow a predictable issues timetable, but certain events can upset that timetable in a big way. The death of US Supreme Court justice Antonin Scalia is precisely such an event, and its consequences will be felt in November.

By the time Scalia’s body reached the funeral home, US Senate Majority Leader Mitch McConnell (R-KY) had already handed Democrats a great talking point and turnout motivator with his announcement that he intends to put off Senate confirmation of any replacement for Scalia for a full year, until a new president has been elected and sworn in.

The usual tactical approach when a president of one party nominates a candidate for approval by a Senate of the other party is basically brute obstructionism — dragging out the committee investigations, perhaps pushing back with the discovery or manufacture of scandals, and so on. McConnell could have almost certainly pulled that off. There would have been grumbling, but heck, there’s always grumbling.

Alternatively, a “consensus” appointee acceptable to both sides of the aisle might be allowed to run the gauntlet. In this case, the likely pick would be DC Court of Appeals judge Srikanth Srinivasan, who clerked for “conservative” justice Sandra Day O’Connor, worked in the Solicitor General’s office during the Bush administration, and was confirmed by a 97-0 Senate vote when Obama appointed him to his current post.

Instead, McConnell laid out an entirely new doctrine: When the Senate doesn’t like the sitting president, he says, it will just hold off on confirming Supreme Court appointments until it gets a president it DOES like.

Why is that such a big deal? Because the implications stretch far beyond the replacement of Scalia.

At least three more SCOTUS justices — Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer — are, as was Scalia, in their late 70s or early 80s. Along with Scalia, they cover the whole range from “liberal” to “conservative.” And like Scalia, there’s every reason to believe that they will each retire or die during the next presidential term.

The Supreme Court is soon to be re-made in a big way, almost certainly altering the “liberal/conservative” balance. Scalia’s death puts that re-making front and center in the presidential race.

In a normal election year, presidential primary candidates talk to their parties’ “bases” about appointing hardcore conservative or liberal justices. Then during the general campaign they move toward the center, avoid ideology, and claim their only concern is finding  “qualified” justices. Scalia’s death and McConnell’s declaration of war on the confirmation process have the effect of keeping everyone in their initial corners for the long haul. If you worry about polarization in American politics, welcome to the Courtpocalypse.

But let me suggest a grand bargain to defuse the situation. Congress has changed the size of the Supreme Court before. Why not pass legislation reducing the number of justices to seven, contingent upon Ginsburg agreeing to retire? That would preserve the balance and put the whole question off. For a little while, anyway.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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