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Saturday, February 27, 2016

'Advise and consent' is to protect Supreme Court

Hatch: 'President has no standing to tell the Senate how to do its job'



The fight over a replacement for the late U.S. Supreme Court Justice Antonin Scalia is heating up this week, with plans for Senate Majority Leader Mitch McConnell, R-Ky., and Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, to meet with Barack Obama over the issue.
Obama’s spokesman, Josh Earnest, has confirmed the president is going to nominate a replacement, and then it will be up to the Senate “to decide if they’re going to fulfill their [duty].”
But a statement released from the office of Sen. Orrin Hatch, R-Utah, who has been involved in the confirmation of every justice now on the Supreme Court bench, said it’s just not that simple, because one of the Senate’s responsibilities is to protect the Supreme Court.
Particularly against the “political upheaval that inevitably occurs during president elections,” he said.
Politics came into play immediately in the opening on the nine-member court. Scalia regularly voted with the Constitution and against new interpretations or new understandings of that founding document. Variously described as an originalist or a constitutionalist, he was regularly on the conservative side of split votes.
So Obama, who already has had two nominees installed, the far-left Elena Kagan who publicly advocated for same-sex “marriage” while that dispute was pending before the court and then went ahead and voted for it, and left-leaning Sonia Sotomayor, is jumping at the chance to install someone who could turn the court further left.
Faced with senators in the GOP-majority body who said they would follow precedent and not decide on a nominee during a presidential election fight, he and others have been applying pressure to try to change that.
Lobbying Grassley to talk about the issue, the White house was upset he didn’t respond right away, and so “informed Grassley’s hometown newspaper, the Des Moines Register,” the Hill reported.
But issues like that are exactly what Hatch says the Senate has a responsibility to defuse.
It a statement from Hatch’s communications chief, J.P. Freire, he explains Hatch’s goal through the many confirmation processes he’s participated in has been to “protect the integrity of the court.”
“Senate Republicans are committed to protecting the court against the political upheaval that inevitably occurs during presidential elections,” the statement said.
The Hill reported that Obama has met with “every member of the Judiciary Committee or their aides” already even though Scalia died only two weeks ago, and Obama has, in fact, not announced a nominee.
The Hill reported, “Obama and his Democratic allies are trying to pressure Republican leaders to abandon their position to not conduct hearings or hold votes for the president’s nominee.”
But Hatch’s fact sheet notes the Senate precedent, established by Democrats, already is clear … that “lame-duck presidents should not fill Supreme Court vacancies created during a presidential election.”
“The Senate has never allowed a term-limited president to fill a Supreme Court vacancy this late in his term. This is only the third vacancy in nearly a century to occur after the American people had already started voting for the next president. In the previous two instances, in 1956 and 1968, the Senate did not confirm a nominee until the year after the presidential election. In fact, the only time the Senate has ever confirmed a nominee to fill a Supreme Court vacancy created after voting began in a presidential election year was in 1916, and that vacancy arose in unique circumstances when Justice Charles Evans Hughes resigned his seat on the Court to run against incumbent President Woodrow Wilson,” the statement said.
Democrats cite the appointment of Justice Anthony Kennedy as an example of someone confirmed during a presidential election year, in 1988, but he “was nominated in November of 1987 to fill a vacancy that arose in June of that year. His nomination was only considered after Senate Democrats voted down President Reagan’s initial nominee, Robert Bork, and forced President Reagan’s second nominee, Douglas Ginsburg, to withdraw,” the Hatch fact sheet explained.
He said the president’s responsibility is to nominate a replacement, but the Senate “has the right to refuse its consent to any nominee.”
“That advice and consent role is not a ceremonial function, but a deliberate and essential component of the Constitution’s system of checks and balances,” the statement explained. “The Constitution does not specify a timeframe for this process; instead, it leaves to the Senate’s discretion to choose when and how it will carry out the advice and consent function.”
Further, he pointed out, “Elections have consequences. In 2014, the American people elected a Republican Senate majority as a check against President Obama’s executive overreach.
“In short: The president has no standing to tell the Senate how to do its job.”
Yet the politicization of the question was surging. On Friday, a coalition of 82 mostly progressive organizations from the AFL-CIO and Americans United for Change to the Center for American Progress and the Feminist Majority Foundation dispatched a letter to senators castigating them for their “unprecedented and destructive refusal” to consider an Obama nominee.
The groups accused the senators of “a clear perversion” of their constitutional duties.
The groups went even further, charging the senators with “a dereliction of your constitutional duty,” and claimed it would cause a “constitutional crisis that would shake the very foundation of our democracy.”
The groups, including what many would describe as extremists like NARAL Pro-Choice America, National Black Justice Coalition, National LGBTQ Task Force Action Fund, People for the American Way, Planned Parenthood Federation, Southern Poverty Law Center and Earthjustice, pointed out that the Constitution calls for the president to nominate a justice “by and with the advice and consent of the Senate.”
“This does not give a select few senators veto power over the president’s role in selection and nominating a candidate,” they said.
However, Hatch, who has been through the process most of his extensive Senate career, clarified some of the issues.
“Fact: Nothing in the Constitution specifies the number of justices that should serve on the Supreme Court. Rather, the Constitution places the power to determine the number of justices in the hands of Congress. This number has changed throughout history. For example, at the beginning of our Republic, only six justices served on the Supreme Court. Over the years, Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the current number of justices at nine,” his office said.
“The Supreme Court has operated without a full contingent of Justices at various times throughout history. In these situations, the Court has well-established rules for dealing with its cases, including 4-4 splits. For example, in 1969, the seat vacated by Justice Abe Fortas stayed open for more than a year after Senate Democrats blocked multiple candidates nominated by President Richard Nixon. More often, justices recuse themselves from cases in which they might have a conflict of interest. In such situations, the Supreme Court continues to operate with a reduced number of Justices. A recusal never inhibits the Supreme Court from functioning, even in high-profile cases.”
The fact sheet noted even having an even number of justices isn’t really a concern, since many cases are nearly unanimous or split along non-ideological lines.
“Should a tie occur, the ruling of the lower court is simply upheld,” he noted. “Although unlikely, should any controversy arise, the court has the authority to hold cases over or reargue them once a new justice is confirmed.”
Further, the statement noted, “Democrats – not Republicans – set the precedent of refusing to confirm Supreme Court candidates in a presidential election year.”
“In 1992, then-Senator Joe Biden – the chairman of the Senate Judiciary Committee – warned President Bush against nominating a candidate for the Supreme Court in an election year. In Biden’s own words, ‘once the political season is under way … action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process,'” the statement noted.
And in 2006, Sens. Harry Reid, Chuck Schumer, Dick Durbin, Patrick Leahy, Joe Biden, Hillary Clinton and Barack Obama all voted to block an up-or-down vote on Justice Alito’s nomination, notwithstanding his clear qualifications, Hatch noted.
The statement continued, “Senate Democrats have been responsible for every major escalation in the so-called ‘Confirmation Wars’ – from the character assassinations of Robert Bork and Clarence Thomas to the unprecedented obstruction of President George W. Bush’s nominees and the use of the ‘nuclear option’ to dismantle the judicial filibuster for lower court nominees in 2013. They have no credibility in criticizing Republicans for following precedents set by Democratic leaders.”
The Republican majority is claiming the position in the Senate now to not name a replacement until the American voters have had some input into the philosophy of the nation moving forward through their presidential choice, he said.
“It’s about preserving the independence and integrity of the court. It’s about defending the Senate’s role in the confirmation process as a real check, not a rubber stamp on the president’s appointment power.”


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