And, the entire process is turned around and stood on its head if race enters into the equation. What were the rules yesterday are ignored and totally new 'traditions' established once race becomes a factor. Religion follows very closely on that pattern of 'most important of all considerations'. Race and religion have been big factors in the selecting of supreme court judges.
And if one then factors in that the president who is making the appointment to the supreme court is a racial minority, who can predict what new precedents will need to become established and under what circumstances the congress can overcome that one?
We should remember the actual lack of rules that govern this process. The president nominates justices to the Supreme Court, subject to majority approval by the Senate. There are no rules spelled out in the Constitution regarding the qualifications of judicial candidates, so technically, the president can nominate anyone he or she wants. John Marshall, considered one of the greatest justices to ever serve on the Supreme Court, only attended law school for a few weeks, so disregard all of the lawyer talk that will likely dominate the 'debates'.
After the death of Justice Antonin Scalia we can expect epic battles with epic lying and distortions of fact. The fight to replace him will be historic, probably resulting in the longest vacancy in history.
If there is one thing we citizens can depend upon form our congress, it is that they will consider everything other than what is beneficial for the American public and that they will lie to us about their true motivation. As this congressional battle shapes up to be huge and furious, we can depend upon the lies to also be huge and furious... and that's the absolute truth !!! and, it is probably the only truth that will be heard... lies from here on out...
War on Facts, Precedent, and the Constitution
By John Nichols reprinted from The Nation
What Cruz, Rubio, Kasich, and McConnell are saying is absolutely at odds with the constitutionally defined duties of presidents and senators.
On September 7, 1956, US Supreme Court Justice Sherman Minton penned a note to President Dwight Eisenhower. Minton, a former Democratic senator from Indiana who had been appointed to the Court by President Harry Truman, was in ailing health. He informed the president that he was retiring from the Court. Eisenhower responded with a note expressing his hope that Minton would enjoy his time off.
Justice Minton left the Court on October 15, 1956, as the country was focused on that year’s presidential campaign and intense battles for control of the House of Representatives and the Senate. Eisenhower, the Republican nominee for a new term, had a lot on his mind. But he found time that week to fill the vacancy created by Minton’s departure. As the Senate was in recess, the president simply appointed New Jersey Supreme Court Justice William Brennan Jr. to the High Court.
Justice Brennan took his place on the bench immediately.
That was that.
And that is a part of the history of how Supreme Court vacancies are filled in election years.
Dwight Eisenhower filled a Supreme Court vacancy shorting before the 1956 election with a recess appointment.
Recess appointments are rare (although Eisenhower also made initial appointments of Chief Justice Earl Warren and Justice Potter Stewart during recesses in 1953 and 1958, respectively) and are eventually followed by post-recess, post-election nominations, and confirmations (as was the case with Warren, Stewart, and Brennan). But nominations and confirmations of new justices in election years are not particularly rare. (Indeed, the authoritative Scotusblog notes, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”
There is ample precedent for nominations and confirmations in politically contentious periods on the cusp of presidential election years. And there is a long history of nominations made and confirmations delivered during off-year election seasons when control of the Senate is at stake.
So why are supposedly responsible Republican senators like Ohioan Rob Portman and otherwise serious media commentators according even the slightest respect to the off-the-deep-end proposal by Republican presidential candidates (included alleged “constitutionalists” Ted Cruz and Marco Rubio) and Republican Senate leaders that a vacancy on Supreme Court be left open for a year so that, if the 2016 election goes their way, a Republican president and a Republican-controlled US Senate can name the successor to the late Justice Antonin Scalia? Why would anyone with access to the historical record and a desire to provide a clear picture of the process of filling vacancies on the nation’s highest court perpetuate the fantasy that a sitting president ought not move to fill an opening on the Supreme Court during the term to which that president has been elected?
It cannot be because Obama is a “lame duck.” The US Constitution does not contemplate the term, nor does it entertain any notion of presidency that becomes more limited as its conclusion approaches. Since the approval of the 22nd Amendment to the US Constitution in 1951, every second-term president has been term-limited. But there is still general acceptance, among Republicans and Democrats, liberals and conservatives, that a president’s second term counts for as much as the first.
Changes in Historic Facts
In the wake of Supreme Court Justice Antonin Scalia’s death, President Barack Obama said he plans on nominating a successor despite Senate Majority Leader Mitch McConnell ‘s vow not to fill the seat until the election is over.
While Democrats in the upper chamber – including Sen. Chuck Schumer of New York and former Sen. Russ Feingold of Wisconsin, both of which called for blocking former President George W. Bush’s nominations – have slammed the GOP for its decision not to consider a nominee until after a new president is elected, Democrats have not always held that stance. The Democrat-controlled Senate passed a resolution in 1960 preventing a recess appointment, much to the dismay of Republicans.
As first reported by The Washington Post – S.RES. 334, also known as Expressing the Sense of the Senate That The President Should Not Make Recess Appointments to the Supreme Court, Except to Prevent or End a Breakdown in the Administration of the Court’s Business – passed the Senate in a 48-33 vote in an attempt to prevent former President Dwight Eisenhower from filling a seat last-minute.Article II, Sec. 2 of the Constitution grants the commander in chief the power to appoint a temporary replacement while the upper chamber is not in session. “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session,” it reads.
The Appointment Clause of the Constitution (Article II, Section 2, Clause 2) states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court."
That "advice and consent" role has meant different things in U.S. history. In the early days of the republic, nominees to the court got a passing glance. The Senate acted speedily, within about a week, from the date of nomination to a vote. But there was a marked difference after 1967, the year Thurgood Marshall was nominated to be the first black Supreme Court justice. Post-1967, the median wait time for a presidential nominee has ballooned to more than two months. (Current members of the court faced an average of 71 days. That includes Antonin Scalia, who died Saturday.)
And it's very possible, if not probable, that Obama's nominee to replace Scalia — and he is pledging to fulfill his "constitutional responsibilities" to do so — will break the record for the longest wait for a vote in history. The fight to replace Scalia could be historic, possibly resulting in the longest vacancy on the court since it went to nine justices in 1869.
Republicans, who currently control the Senate, have said they don't think Obama should nominate anyone in this election year — even though Obama still has 11 months in office. With that, here are seven things to know about the presidential appointment process:
The longest wait for a presidential nominee to the Supreme Court, after 19 public hearings, was 125 days — Louis D. Brandeis.
In 1916, President Woodrow Wilson nominated Brandeis to become a member of the Supreme Court. However, his nomination was bitterly contested, partly because, as Justice William O. Douglas wrote, "Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible. . . [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court, confirmed 47-22, June 1, 1916.
It cannot be because Obama is governing in a moment of divided government. Both Eisenhower and Reagan made late-in-their-second-term appointments as Republican presidents with Democratic Senates.
It cannot be because Obama is governing in a moment of particularly deep national division or anxiety, as Ohio Governor John Kasich suggested in Saturday night’s Republican debate. Supreme Court nominees have been named and confirmed in times of war, depression, recession, and social turbulence.
The historical record is clear: Presidents make Supreme Court nominations in election years and Senates confirm them.
One of the greatest justices ever to sit on the Court, Louis Brandeis, was nominated by Democratic President Woodrow Wilson in 1916. It was a presidential election year that was expected to be closely contested (with Wilson eventually facing Justice Charles Evans Hughes, who resigned from the High Court to become the Republican nominee). Brandeis was a leading progressive (some of his critics decried him as “a radical,” while Supreme Court Justice William O. Douglas would eventually characterize him as “a militant crusader for social justice”). Brandeis was also the first Jew named to the Court, and at a time when anti-Semitism and other forms of prejudice were so widespread and concerning that B’nai B’rith had recently formed an Anti-Defamation League. America was on the verge of entering World War I, corporations were violently suppressing labor organizing and strikes, and anti-immigrant sentiment was on the rise. Wilson had a Democratic Senate, but many of the Democrats were Southern segregationists who had little sympathy for Brandeis’s progressive politics. The nomination stirred plenty of contention and serious opposition, yet Brandeis was approved by the Senate on June 1, 1916. Ten days after Justice Brandeis was confirmed, Justice Hughes resigned from the Supreme Court, creating a second election-year vacancy, which was filled in two months.
No one expects Ted Cruz and Marco Rubio to be anything less than ruthless partisans. And if the 2016 race has confirmed anything, it is that the senators from Texas and Florida are as unfamiliar with the facts about Supreme Court nominations as they are with basic premises of the Constitution. Senate majority leader Mitch McConnell is better informed; yet he has made it clear that his mission is to obstruct President Obama. That certainly creates political challenges when it comes to filling the vacancy created by the death of Justice Scalia. And it is fine to focus on the excesses of partisanship that are now on display. But that certainly does not justify unquestioning repetition of the false constructs, radical rewrites of history, and mischaracterizations of constitutional language, intents, and practices now being peddled by partisans who make absurd assertions without conscience or credibility.
Indeed, to treat seriously what Cruz, Rubio, Kasich, and McConnell are now saying is to foster a fantasy that is at odds with American history and with the constitutionally defined duties of presidents and senators.