Tuesday, February 16, 2016

Op-ed: Delay, Delay, Delay...No Ifs, Ands, or Buts

Delay, Delay, Delay...No Ifs, Ands, or Buts
By: Diane Sori / The Patriot Factor / Right Side Patriots on http://www.americanpbn.com/

“I plan to fulfill my constitutional duties to nominate a successor in due time...”
- Barack HUSSEIN Obama words on hearing of Supreme Court Justice Antonin Scalia's passing

This past Saturday a beacon of conservatism passed away as Supreme Court Justice Antonin Scalia died peacefully in his sleep while a guest at the Cibolo Creek Ranch, in Texas. Scalia had attended a private party that night before excusing himself to retire early saying he did not feel well after having gone quail hunting the previous day.

Scalia, 79...who in 2008 wrote the 5-4 ruling striking down Washington’s ban on handguns by finding that the Second Amendment does indeed protect an individuals right to keep and bear arms in their own home...was appointed by President Ronald Reagan in 1986, spending three decades on the High Court where his judicial philosophy and judicial interpretation of statutes, for the most part, followed the 'doctrine of originalism'...meaning Scalia basically followed the words of the originally drafted and ratified Constitution to the letter instead of today's much used statements from members of Congress about the meaning and purposes of laws...in other words legislative history.

Scalia, the very man who described liberal justices as “cloaking their personal preferences in legal opinions,” was also a vocal critic of Supreme Court opinions that did not provide lower courts and litigants with what's called 'clear guidance' based upon his understanding of the Sixth Amendment, which sets out defendants’ rights in criminal prosecutions including protecting criminal defendants from what he called 'intrusive searches.' And Scalia also affirmed the rights of state juries to award punitive damages as they...not the courts...see fit.

And while Justice Scalia's death is sad in and of itself, his death at this point in time will directly affect the upcoming court rulings on abortion rights, affirmative action, immigration, political redistricting, public-sector unions, and voting rights, just to name a few. But even more important is that Scalia's death now leaves a vacancy on the High Court that by Obama's hand can shift the balance of power to the left. And Obama has basically threatened to do just that with his statement to nominate a justice in “due time,” and he'll try to do it through a recess appointment, and he'll chose a liberal activist judge who will legislate from the bench instead of interpreting the law as is their job description.

So while 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" the Democrats claim that by not allowing Obama to do so even though he has less than a year to go in his presidency, would allow any 4-to-4 lower court decisions 'standing' as the final word. And of course the Democrats do not want that as that would not allow them any legal precedent in regards to possibly overturning votes that lean conservative. And Democrats especially do not like that matters that come to the court for emergency rulings during the summer, matters which normally take five votes to issue a 'stay of proceedings,' might actually be allowed to proceed on 4-to-4 votes, and that includes executions.

Now think about this, Obama's appointment would take office immediately and said appointee would serve a term that under the rules could last until the next session of Congress ends in late 2017. There would of course be challenges to the legality of such a maneuver, but those challenges could take longer than the appointment itself would run...and guess what...there's a Senate recess going on right now that could very well be the “due time” Obama is talking about. Remember, a Senate recess of less than three days is not long enough to allow Obama to initiate his recess appointment power, because as per the law the Senate’s recess must be at least ten days in length and right now that window is open until February 22nd at 12 noon, and if he did so by trying to circumnavigate the law this would end up as a protracted and very long battle about legalities between lawyers on both sides of the issue.

Are you getting the seriousness of the situation 'We the People' are now facing...I sure hope so.

And with Scalia’s death happening at the worst time possible, the political diatribe has now been reset to include a major political battle coming just ahead of the presidential election leaving Senate Republicans with two choices. The first choice consists of parts A, B, and C...A: does the Senate finally stand strong and united against any and all Obama might try to appoint even if it means filibustering...B: do the Republican Senators take a recess appointment off the table by returning from recess immediately and taking no further recesses until the next president has been chosen...and C: do they counter those who say this is just plain wrong by giving a bit of history about appointment stalling, as in the fact that an 11-month delay is nothing compared to the longest vacancy on the High Court. And that vacancy was the 27 months between the Tyler and Polk administrations before the Civil War, with the longest vacancy since the High Court went to nine justices in 1869 being the 391 days during the Nixon administration when Justice Abe Fortas resigned in 1969...a record that would stand until March 12, 2017.

Or does the Senate opt for the second choice as they have done so many times since 'We the People' turned the Congress red...as in do they once again cower in fear of the race card being used against them and give in to Obama's wants as they've done so many times before...and we know that sadly that is a possibility.

So while Senate Minority Leader Harry Reid issued a statement that most Republicans felt helped to fuel the heated fight that lay ahead by stating that “The President can and should send the Senate a nominee right away," and that “Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities," Senate Majority Leader Mitch McConnell countered his remarks by publicly stating...and rightfully so...that he has no intention of moving any Obama appointee to a floor vote this year. “The American people should have a voice in the selection of their next Supreme Court Justice...therefore, this vacancy should not be filled until we have a new president,” were his words...and they were words echoed by both Senate Republicans and the Republican candidates who said the seat must stay vacant until the next president takes office in January 2017.

And two in specific said it best for while the other candidates did express their heartfelt condolences in regards to Scalia's passing, only Senators Marco Rubio and Ted Cruz promised “unprecedented obstruction” in the nominating process.

"I do not believe the President should appoint someone," Florida Senator Marco Rubio said, warning that Obama would "ram down our throat a liberal justice."

“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...”
were some of the words of Texas Senator Ted Cruz.

But unfortunately, while McConnell, the Senate Republicans, and the candidates are right in their thinking, history shows that presidents have made recess appointments, and two did so in an election year. In fact, there actually have been a dozen such recess appointments with nine of the 12 taking place before the Civil War, and with the remaining three taking place after the Civil War when the Court became nine members. Stanley F. Reed was nominated by FDR in 1938, and confirmed during an election year. And Dwight D. Eisenhower did the same when he appointed William Brennan to the Court in 1955, but he wasn't confirmed until after Eisenhower's re-election in 1956. And Eisenhower did a recess appointment again in 1958, with the appointment of Potter Stewart.

And while Republicans raised the possibility of using the 'Thurmond Rule' as a reason to condemn Obama's actions if he does try to do a recess appointment...with the 'Thurmond Rule' being an unofficial rule suggesting that no lifetime judicial appointments should move forward in the last six months or so of a lame-duck presidency....here's a real scary thought no matter if Obama does a recess appointment or a standard nomination...as in who would Obama nominate. And that in and of itself could have Obama playing games for his end game has been since day one to turn the High Court's political face to the left without us being able to legally stop him...as in he'll throw the worst or the worst out first hoping the Republicans will compromise with him on someone a bit more center of hard left. And the worst of the worst would have Obama nominating none other than former Attorney General, Mr. Fast and Furious Himself...Eric Holder...knowing full well that he will never pass the Senate vetting process.

So who meets Obama's liberal criteria while at the same time being, he hopes, more palatable to Senate Republicans...how about the 9th Circuit Court of Appeals Chief Justice Sidney Runyan Thomas, a Democrat appointed by Bill Clinton in 1996 and who authored the opinion in Nadarajah v. Gonzales, a 2006 civil rights case about an immigrant who had been held indefinitely, is a man who shares Obama's GITMO stance. Or how about Sri Srinivasan, the federal appeals court judge confirmed unanimously in 2013 for a seat on the U.S. Court of Appeals for the D.C. Circuit, which has been traditionally a 'so-called' stepping stone to the Supreme Court. Or what about Merrick Garland, somewhat more moderate in his leanings and a man who serves as chief judge on the D.C. Circuit court...could he be the compromise choice that would satisfy Republicans...I sure hope not as compromises for that important of a position rarely works out the way our side intended.

And the bottom line in all this is that Senate Republicans must not under any conditions or circumstances allow lame-duck President Barack HUSSEIN Obama to appoint anyone to assume Scalia's position...that must wait until the next president takes office. And since the Supreme Court does not resume after its June recess until October, a wait of just 3-additional months until the next president is sworn in is not an unreasonable request, and a request that would serve this country well. But then again Barack HUSSEIN Obama has no desire to serve this country well...what with his goal being the tearing down of America in order to rebuild her in a socialist third-world sort of way...just saying.


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