Supreme Court Showdown

Once a lame duck president called upon the Senate to, "Join together in a bipartisan effort to fulfill our constitutional obligation of restoring the U.S. Supreme Court to full strength."  He also called on the Senate for, "Prompt hearings conducted in the spirit of cooperation and bipartisanship."  In February 1988, eight months before that year's presidential election, the Senate voted 97-0 to confirm President Ronald Reagan's nominee, Anthony Kennedy.  

President Reagan, the founding father of the modern Republican Party, governed recognizing that the American democratic system calls for compromise.   He is quoted as telling aides, "I'd rather get 80 per cent of what I want than go over the cliff with my flag flying."   Reagan and then Democratic Speaker Tip O'Neill respectfully worked together in the best interest of the American people, just the way our Founding Fathers had originally envisioned. 

So when conservative Justice Antonin Scalia died suddenly earlier this month, President Barack Obama announced his intention to fulfill his constitutional obligation to put forth a Supreme Court nominee.  In a post on the ScotusBlog website Wednesday, the president wrote the person he nominates will the eminently qualified.  "I seek judges who approach decisions without any particular ideology or agenda," he wrote, "but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand."

But Senate Republicans announced that there would be a no confirmation hearing and no vote on the president's nominee.  "This nominee will be determined by whoever wins the presidency in the polls," Senate Majority Leader Mitch McConnell said to reporters Tuesday.  "In short, there will not be action taken."  As a justification, Republicans cited a June 1992 quote from then Senator Joe Biden, who said, "President Bush should consider following the practice of a majority of his predecessors and not--not--name a nominee until after the November election is completed."  However, Biden's comments were not made in February, but rather in late June, shortly before Congress's summer recess.  And Biden was speaking of a possible resignation, not a sudden death. 

Battles between the political parties over Supreme Court nominees have been increasingly contentious in recent history.  Nonetheless, in a shocking and unprecedented move, McConnell said would not even meet with Obama's nominee.  "I don't know the purpose of such a visit," he told reporters.

By making such a move, Senate Republicans are once again showing their utter contempt for President Obama.   More importantly, they are once again demonstrating that their most important priority is winning political victories and settling scores rather than complying with the Constitution.   Republicans think that by calling Obama the most divisive president ever, voters will overlook the fact that it is really the GOP that has been the great divider.  

On the day Obama was first sworn in 2008, Republican leaders held a meeting in which they agreed to block Obama and make him a one term president.  Of course, Republicans have since consistently done all they could to gum up the works.  For instance, they blocked immigration reform, they shut the federal government down in 2012 over whether to raise the federal debt ceiling, they have blocked dozens of important judicial appointments, and they did nothing to silence the Obama birther movement.  

However, as a consequence of endless Republican obstructionism, voters are frustrated and angry with Washington.  This has led to the rise of Donald Trump as a Republican presidential candidate, and a civil war within the party.  Meanwhile, Obama, despite of all the impediments he has faced these past seven years, has made real headway on the economy, banking reform, equal pay for women, health care, and he has kept the country safe.  

The president intends on nominating a replacement for Scalia.  A Fox News poll released Monday found that nearly two-thirds of those surveyed believe that Obama should make a nomination and the Senate should take action.   Despite their bluster, Senate Republican leaders should allow the president's candidate to be considered by the Senate Judiciary Committee.  If the candidate is affirmed there, the Republican controlled Senate should take up the nomination.  For Senate Republicans to declare that they won't even meet with the candidate goes against the constitution, and it seems childish.  What do they fear?

Perhaps they should reflect on the words of their spiritual leader, "There are no easy answers, but there are simple answers," Ronald Reagan said.  "We must have the courage to do what is morally right."  

Antonin Scalia and Politics

Antonin Scalia was one of the most influential and consequential justices in the history of the U.S. Supreme Court. Appointed by President Ronald Reagan in 1986, he was the intellectual anchor for today's conservative movement. His sudden death was a shock to all Americans, especially Republicans, who immediately assumed their battle positions.

The U.S. Constitution specifies (Article II, Section 2) that the president, "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Certainly a strict constitutional originalist like Scalia would have agreed that a president with eleven months left in office has the right to nominate someone for the Supreme Court.

Shortly after word of Scalia's death, Senate Majority Leader Mitch McConnell, who decides what the Senate takes up, said in a statement that President Barack Obama should not nominate a replacement. "The American people‎ should have a voice in the selection of their next Supreme Court Justice," he said. "Therefore, this vacancy should not be filled until we have a new President."

This unprecedented message was followed by similar warnings from Republican presidential candidates. Texas Senator Ted Cruz took to Twitter, saying, "Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement." Florida Senator Marco Rubio also said Obama should not nominate a replacement. "The next president must nominate a justice who will continue Justice Scalia's unwavering belief in the founding principles that we hold dear," he said in a statement.

Justice Scalia's death dominated the early portion of Saturday's Republican debate in South Carolina. Minutes before the debate, which aired on CBS, President Obama expressed his condolences to Scalia's family while praising the jurist's "remarkable" life. Then the president said, "I plan to fulfill my constitutional responsibilities to nominate a successor in -- due time." He continued, "There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote."

The president's comments were fuel for an over-heated and feisty debate atmosphere. Donald Trump warned Senate Republicans to "delay, delay, delay." Cruz said that, "the Senate needs to stand strong and say we're not going to give up the Supreme Court for a generation." Former Florida Governor Jeb Bush called for a "consensus pick," which would be almost impossible to find with a deeply divided Congress.

Republicans feel they own the Scalia court position. Their comments and actions are consistent with the partisan war they have been waging in Washington from the day President Obama was first sworn in to office. For nearly eight years now the first instinct for Republicans in Congress has been to obstruct, block and divide. This, no doubt, plays well with certain segments of the Republican Party. But such tactics have demoralized much of the electorate and have probably led to the rise of Donald Trump.

Why didn't McConnell simply say that should the president offer a nomination, as is his right under the Constitution, the Senate would take it up? After all, the same American people who McConnell says should have a voice twice overwhelmingly reelected President Obama to office. Furthermore, the Constitution does not say the president shall appoint unless he has less than a year left in office.

Republicans would be far wiser to agree to let the process take its course and then focus their attention on defeating the president's nominee in the Senate. This is what the Founding Fathers had in mind when they wrote the rules.

What an appropriate way this would be for Republicans to remember the man who they consider to be the greatest defender of the U.S. Constitution.

Broadcasters Prevail

In a major win for broadcasters the Supreme Court ruled 6-3 that Aereo, a streaming service that provides access to programs at about the same time as they are broadcast, violates the Copyright Act of 1976.  The decision is a huge blow for Aereo, which may go out of business.  

Aereo offers subscribers broadcast television programming over the Internet for a monthly fee of $8 to $12 a month.  Its system is made up of servers and thousands of dime-sized antennas stored in a central warehouse.  Aereo's technology makes a copy of a program into a subscriber's file, then makes it possible for only that subscriber to view the program on their computer, tablet or smartphone, seconds after the broadcast begins airing.  

Aereo neither owns the copyright to the program, nor a license to rebroadcast the program.  But it argued that it is not transmitting the program, rather the subscriber is transmitting the program.  The Court's opinion, written by Justice Stephen G. Breyer, said, "We do not see how the fact that Aereo transmits via personal copies of programs could make a difference.  The Act applies to transmissions by means of any device or process."  Justices Antonin Scalia, Clarence Thomas and Samuel Alito were in the minority.

Aereo launched in 2012 in its first market, New York.  Broadcasters, acting on behalf of their local New York City television stations, filed suit two weeks after the service was announced.  A federal judge ruled in Aereo's favor four months later.  Then in early 2013, a federal appeals court upheld the lower court's ruling.  Subsequently, the broadcasters petitioned the Supreme Court to hear the case. In oral arguments last April the Deputy Solicitor General argued against Aereo on behalf of the government. 

Broadcast networks retransmit their programs over stations throughout the country.  They derive part of their revenue from commercials.  But cable companies pay broadcasters about $3 billion for the right to carry broadcast programming over their systems.  Aereo argued that it is not like a cable company because it is renting out antennas and cloud storage to subscribers.  Had Aereo's argument been upheld it could have undermined the current broadcast economic model.  Then the broadcasters would likely have turned to Congress for help.

Both Aereo's CEO Chet Kanjojia and investor Barry Diller, a prominent media figure, have said in the past that the service would be shut down if they lost in the Supreme Court.  A CBS Spokesperson reacted to the ruling with a statement, saying, “We are pleased with today’s decision, which is great news for content creators and their audiences.”  Nonetheless, the Court's deliberations underscore the continuing challenges broadcasters face with advances in technology and changes in viewing habits.