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Healing for America

Header Graphic of Bill Sargent, Mark Mansius, and John Gay, the Three Musketeers

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The Scalia Legacy



To Be or Not To Be:
Confirmation of a New Supreme Court Justice

February 29, 2016

Last week, eleven members of the Senate wrote Majority Leader, Mitch McConnell, saying he should “not hold hearings on any Supreme Court nominee until after our next president is sworn in.”  "It's not about the personality," Judiciary Committee member and Majority Whip John Cornyn (R-TX) said.  "It's about the principle." Meanwhile Majority Leader McConnell informed the press last week that he was not “inclined” to meet with any judicial pick made by the President remarking, “This decision ought to be made by the next president.”  The “Three Musketeers” concur.

Back in 1992, when Vice President Joe Biden served as Chairman of the Senate Judiciary Committee, he strongly argued for restraint calling on “the Senate’s constitutional authority to provide, or withhold, consent, as the circumstances require.” 

On the floor of the Senate he told his colleagues we “should seriously consider not scheduling confirmation hearings on [any Bush 41] nomination until after the political campaign season is over.”   It would not be prudent, for Bush to nominate someone to the Supreme Court during what he predicted would be “one of the bitterest, dirtiest presidential campaigns we have seen in modern times.”  He contended  that if a Supreme Court justice were to resign “tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed.”

He concluded his passionate plea to his colleagues, “Once the political season is under way, and it is, 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.”

We believe that great care and fairness must rule the process for appointing a new Supreme Court Justice.  The Constitution states that a Supreme Court Justice is appointed for life, unless they choose to resign, with the only means of removal being through impeachment.  They’re allowed to hold their offices “during good Behavior.”  In our history only one Justice was impeached, though not convicted¬† by the Senate, and only one resigned after being threatened with impeachment.  Because in the beginning; the Court assumed the practice of Judicial Review, we live with both their political and judicial views long after the elected officials who appointed them leave office.  

At times their decisions don’t seem to pass the “red face test.” The country endured the horrible Dread Scott decision of the Taney Court in 1857 that sustained the notion that black people are property and could never become citizens.   More recently Justice Scalia opposed the court’s unbelievable decision forcing citizens to purchase healthcare insurance against their will under Obamacare.

Our President has exhibited a pattern of overstepping his authority.  Sometimes the Supreme Court has applied the brakes.  Confirming a Supreme Court appointment of a President who has no respect for the limits of his office will, in our view, be a big mistake.

Mark and John and Bill


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