Anyone who has ever been in a position of authority and responsibility, particularly over a large number of people, comprehends that there are very few decisions that will please everyone; it is just human nature. The idea of “pleasing everyone” becomes even more impossible in politics; especially when it is an Executive Branch decision, and particularly when one political party objects to every decision made by the sitting President.
President Obama likely knew that it wouldn’t have mattered who he nominated to replace Antonin Scalia as an associate justice to the nation’s highest court. In fact, he may not have been very surprised at the instantaneous assertion by Republicans in the Senate that they would not give a fair hearing to any nominee to the Supreme Court. By now, anyone with a pulse is aware that Republicans claim it is not within the current President’s constitutional right to nominate a Supreme Court justice and that it is the responsibility of the next president.
Now, it has been reported in the mainstream media everywhere that presidential candidate Bernie Sanders (I, D, VT) said that if he wins the Democratic nomination for president and the general election in November, he will ask President Obama to withdraw his Supreme Court justice nomination of Judge Merrick Garland. Apparently, Senator Sanders believes, like every Republican, that the decision to nominate the “right” kind of Supreme Court justice is better left to the next president; but only if it is Bernie Sanders.
Senator Sanders told MSNBC’s Rachel Maddow that, “I think I’m 100 percent prepared to support Judge Garland. I think he’s clearly very knowledgeable and can serve ably on the Supreme Court. But, there are more progressive judges out there.” Sanders insists that any Supreme Court nominee would have to meet his litmus test that entails “being loud and clear that he or she will overturn the disastrous Citizens United Supreme Court decision.” So there it is again; expecting a prospective SCOTUS justice to publicly make a political pledge to overturn a prior Court decision that is not before the court as if there is not a regular established process for the nation’s High Court to hear a case.
Likely surprised at the presidential candidate’s naïveté, and audacity, Sanders was asked specifically if he would directly ask President Obama to withdraw Judge Garland’s name, forsake his Constitutional authority and duty as President, to allow Bernie Sanders to nominate a judge because they pledged in advance to overturn a previous SCOTUS ruling; the Vermont senator said, “Yes I would.” Without conflating Senator Sanders’ remarks about him being better qualified to choose the “right” kind of nominee to Republican obstruction for obstruction’s sake, there are a couple of issues worth addressing.
First and foremost; the decision to nominate a prospective Justice is the purview of the current President; whoever wins the November election should not factor in to any Presidential consideration. Second, whoever the current or next president nominates will have to go through the intense and often combative Senate confirmation process. There may well be “more progressive” judges available for the nomination, but it is general knowledge that judges on the federal benches do not wear their politics on the sleeves. It is true all judges have political leanings, but part and parcel of being any kind of judge, much less a Supreme Court justice, is not being blatantly partisan; the deceased Scalia and Justice Clarence Thomas notwithstanding.
Putting aside the appearance of audacity and hubris of even expecting a sitting President to withdraw his Supreme Court nominee because he is not progressive enough for the as-yet-unelected or inaugurated next president, there is still a problem with expecting the High Court to overturn a previous decision on partisan political principle. It is an issue that came up a couple of months ago when Senator Sanders said in a Tweet that, “Any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions.”
At first blush that statement reeks of ignorance of the federal judiciary, but it cannot be put down to some campaign underling tweeting out nonsense without Senator Sanders’ knowledge and approval. Last November Senator Sanders said the same thing; “No nominee of mine to the United States Supreme Court will get that job unless he or she is loud and clear that one of their first orders of business will be to overturn Citizens United.”
Senator Sanders is an establishment politician with a quarter century worth of experience in Congress and is very well aware of how the High Court works. Unlike the federal legislature that has the freedom to take up, or blow off, any issue at will, court cases must go through “numerous and lengthy procedural hoops before they can be heard or decided by any court.” This is particularly true of the nation’s highest Court by design of the U.S. Constitution. As noted several times by judicial experts and savvy eighth grade civics students alike; “it would be impossible for any Sanders’ nominee to the High Court to guarantee that any case would be one of their first orders of business and decisions;” especially as an “Associate Justice” on the nine-justice Supreme Court.
The U.S. Constitution contains two significant limits on the justices’ ability to set their own schedule in Article III. Article III limits the federal judiciary’s authority to “cases” or “controversies” that have long been understood to require that two parties that have a genuine conflict with each other before a federal court can intervene and settle the issue.
Even a super-duper newly-appointed progressive justice needs to follow Constitutional procedures and wait for the case they were “loud and clear about overturning” to go through the federal appellate court system. Any semi-knowledgeable civics student knows that “the Constitution provides that the Supreme Court only has appellate jurisdiction over the overwhelming majority of cases.” What that means is that the High Court justices, or one super progressive High Court Justice, cannot decide to consider a matter until after it has been decided and appealed by several lower courts.
What continues to be an unanswered question is exactly how Senator Sanders would convince hardline Republican senators to support and confirm a “more progressive judge” any more than they would support the “socialistic policies” Senator Sanders espouses. It is yet unclear how a different “Democratic” president will fare any better with Republicans in Congress than President Obama, but parroting “political revolution” is not going to be any more convincing or productive.
There are millions of Americans who want the disastrous Citizens United ruling overturned, just like there are a substantial number of evangelical fanatics who want Roe v. Wade overturned; but neither is going to happen because a prospective Supreme Court Justice pledges “loud and clear” that “one of their first orders of business is overturning” _________ (fill-in-the blank). What is also not going to happen is President Barack Obama withdrawing his nominee to replace Antonin Scalia on the High Court based on who wins the general election in November, or because Republicans want to make the choice.
No doubt there are more progressive and liberal judges ‘out there’ that the President could have nominated, but he chose a highly-qualified jurist that has a reasonable chance of being confirmed. What bothers many Democrats is that although Senator Sanders said he is certain he will support Merrick Garland’s nomination, “it is still surprising that a politician running for the Democratic presidential nomination has openly criticized the current Democratic president’s nominee.” What is really surprising is why any pundit is surprised that a politician running for the Democratic presidential nomination is still openly criticizing the current Democratic President at all.