Disorder In The Court


It’s the Fourth of July, so Americans are busy celebrating the founding of our country–squeezed in somewhere between going to the beach, grilling out and shopping red, white and blue sales. What all those activities have to do with the signing of the Declaration of Independence on July 4, 1776. I’m not sure. What I am sure of is that most citizens have a good grasp on our country’s inception (Boo King George! Yea George Washington!), but they are uniformed about, and perhaps uninterested in, current events affecting our government..

The revered Declaration of Independence begins with the words “When in the course of human events it becomes necessary….”  Back in 1776 it was necessary for the colonists to get out from under British rule.  Fast forward to 2018.  The British are out and so is a sitting United States Supreme Court Justice.  Anthony Kennedy, the tie-breaking voter on some of the court’s biggest cases, has announced his retirement at the end of this month.  Please raise your hand if this situation is the #1 topic at the water cooler at work.  I thought not.

Sadly, most Americans don’t even have a grasp of what SCOTUS is much less what’s going on there.  The Supreme Court of the United Status (edgily referred to as SCOTUS) is the highest federal court in the country and is in the judicial branch of our government.  It is composed of nine justices who may collectively be referred to as the Supremes, but the group has nothing to do with singing.  The members of the court are not elected (that would apparently be too political); justices are nominated by POTUS (President of the United States) and confirmed by the Senate (SOTUS?).

Even though SCOTUS is not a political body, a big political battle is brewing because the next justice confirmed will have the opportunity to shift the court to the right for some time to come.  Upon Justice Kennedy’s retirement,, the remaining eight justices will be split between four liberals and four conservatives, i.e., a Mexican–er, American–standoff.  Stephen Breyer, Elena Kagan, Sonia Sotomayer and Ruth Bader Ginsberg were Democratic (liberal) nominees and John Roberts, Neil Gorsuch, Samuel Alito and Clarence Thomas were Republican (conservative) nominees.  President Trump, being a Republican and a conservative, is going to appoint a conservative.  But whomever he appoints has to get past the Senate which is composed of a good number of Democrats/liberals.  Prepare for a rumble on Capitol Hill!

A justice confirmed now will be able to exert influence for many years. Justices have a lifetime tenure, so once a justice is on the bench, the country is stuck with him until he dies or retires. Justice Ruth Bader Ginsburg, age 85 and a liberal, may die with her robe (not her boots) on because she does not want to allow the current conservative president the chance to replace her with a conservative justice. President Trump has already been through this process once when he nominated conservative Neil Gorsuch

The president’s nominee is to be announced on July 9th, the day before President Trump leaves for a presidential trip to Europe.  Twenty-five people are on his consideration list, all but one of whom are judges; the odd man out is Utah Sen. Mike Lee, an attorney and former assistant U.S.Attorney.  So far, so good. The President is astutely considering only those with judicial (and in the case of Sen. Lee, legal) experience.

News reports indicate that there is now a shortlist of candidates.  While it is uncertain who will be chosen, it is clear that Trump’s choice will be someone who can “serve for decades,”  i.e.., someone relatively young. Trump may be in office for only a few short years, but he can leave a living legacy on the bench in the Supreme Court building.

A frontrunner is said to be Judge Amul Thapar, a U.S. Circuit Court of Appeals judge.  Thapar is appealing because he would be the first American of Indian or Asian descent to receive a nomination. Amy Coney Barrett, another federal appellate judge and former Notre Dame law professor, is also a top contender.  Sure there are already women on the court, but do any of them have seven children like she does?  Are large families appropriately represented on the high court?  Being PC is all well and good, but this is the highest court of the land, so perhaps we should just aim to select the best qualified candidate regardless of race, gender, nationality descent, size of family, etc.

SCOTUS is in summer recess, but a judicial decision, i.e., confirmation of the newest SCOTUS justice, is expected before the first Monday in October, the day the high court traditionally reconvenes after its summer recess.  For the time being, all eyes will be on a decision about SCOTUS rather than from SCOTUS.  No matter who is added to the high bench, Americans should be interested in what’s going on with SCOTUS every day, not just on July 4th.  Regularly exercise your independence by staying in the know about SCOTUS.

JUST WONDER-ing:  Before your read this post, how many of the nine SCOTUS justices could you name?  Were you aware that Justice Kennedy had retired?  Did you already know what the acronym SCOTUS stands for?











The average citizen associates the term “nine lives” with a cat.  With the death of U.S. Supreme Court Justice Antonin Scalia this past weekend, the term brings to mind the bodies that sit on the Supreme Court bench, i.e, nine justices.  Filling the now vacant ninth spot is likely to cause a cat fight among politicians.

The Supreme Court of the United States, familiarly known as SCOTUS, is the highest federal court in our land.  And nothing says that you are on top of the court heap like having a cool acronym to be referenced by.  The high court was created by Article III of the U.S. Constitution.   The Constitution is a fairly dry and old historical document, so it doesn’t have a cool acronym like SCOTUS does.   Article III provided for the Supreme Court to have a chief justice and associate justices, but it left it to Congress to fix the number of justices to sit on the court.


Initially, the Supreme Court had six justices.  Ultimately, Congress figured out that an odd number of justices might work better to avoid tie votes.  Nine has been the magic number of justices since 1869.  Magic must have something to do with it since the justices are always pictured in flowing black robes like they were professors at Hogwarts.


To become a Supreme Court Justice is quite the process.  There’s no swimsuit competition like in Miss America, but popularity does have something to do with the winners of both contests.  The POTUS (President Of The United States) gets to nominate a contestant he likes.  The nominee must then be confirmed by the Senate who determines it likes POTUS’ choice.  Confirmation hearings include asking the nominee to answer various questions like the interview portion of the Miss America Pageant.  Instead of saying that he’d use his reign–er, term on SCOTUS–to work for world peace, the SCOTUS nominee universally says that he would uphold the Constitution.  As Richard Dawson would say, “Good answer!”

Unfortunately, this was a really bad time for Justice Scalia to depart this life and require his successor to be chosen.  We’ve got a hotly contested and wide open presidential race going on for heaven’s sake.  Now, on top of determining what rude/vulgar but heartfelt and honest thing Donald Trump will say next and if he and Megyn Kelly will ever kiss and make up, we have to figure out just the right person to be #9 on SCOTUS.

The problem is that Justice Scalia, a 1986 Reagan appointee, was the leading conservative on SCOTUS.  The balance of power on SCOTUS may be drastically altered by the political leanings of his successor.  That’s why there’s a cacophony of talk about when to have an appointment to SCOTUS made.  The Donald, and many others, think that the decision should be delayed so that the new POTUS can make this important decision.  The input of the American people (or at least the pathetic percentage of them who are of voting age, registered to vote, and actually vote) is needed is for this choice.

Such a position should be quite disturbing to US for several reasons.  First, Barack Obama may be a lame duck president, but he is still POTUS.  It’s like being pregnant.  You either are pregnant or you are not.  Barack’s either POTUS with all the responsibilities and powers that entails, or he’s not.  This point is valid regardless of the party affiliation of the sitting POTUS. And by electing him, the American people have already spoken and put the power in his hands until the end of his term.

Barack picture

Second, time and tide waits for no man.  America can’t simply delay crucial decisions until a better future time.  Life happens when it happens convenient or not.  A vacancy has occurred and it needs to be filled.  There is no asterisk in Article III stating “unless the POTUS is a lame duck.”  If the wacko running North Korea takes threatening militaristic action, are we going to send him a note and tell him to hold that thought until a new POTUS is on the scene since significant consequences will result from whatever decision is made?  I think not.

Third, calling for a delay is nothing more than playing a political game.  Justice is supposed to be blind, so trying to make sure that the “right” party gets to make the choice of the SCOTUS nominee makes a mockery of the impartiality the ultimate SCOTUS justice is supposed to display.

Fourth, there will be judicial fallout if no appointment is quickly made.  SCOTUS is in the middle of its current term which runs from the first Monday in October through June or early July.  If only 8 justices participate in these appeals, the dread tie vote might occur.  In that event, the lower court decision merely stands.  Don’t we want a reasoned opinion issued one way or another so at least the important issue which made it all the way to SCOTUS has been determined by that court?

Let’s not forget that even if the sitting POTUS nominates someone, that isn’t a “Go to the bench, go directly to the bench” card.  Confirmation proceedings must occur and Senate blessings bestowed.  Given that the current POTUS is a Democrat and the Senate is Republican-controlled, there will be plenty of opportunity for both parties to influence the ultimate decision.  Barack has to keep in mind that the nominee must have a chance to pass muster on the Hill in order to be confirmed.  This isn’t Obama’s first Supreme Court rodeo.  He’s previously nominated now sitting Justices Sonia Sotomayor and Elena Kagan, so he knows how the process works.

confirmation hearings

This situation is a golden opportunity  for US to realize that our government’s operation is an ongoing one of which we need to be aware.  Presidential elections occur only every four years, but the government operates continuously between those main events.  Curiosity might kill the proverbial cat, but it is up to US to ask questions and stay on top of issues affecting how our country is run.  The POTUS and SCOTUS are there to make government work for US.  Government is not working for us when those in charge punt to the next shift.