Ladies and gentlemen, we are at a watershed moment in American history. For the first time in my lifetime, which I’m 38 years old, there’s a possibility that we may not have a conservative majority on the Supreme Court. It has been a five-to-four vote on every major case since basically the 60's when you had the Warren Court. Ever since then, there have been Republican appointees that have in large part dictated jurisprudence in America for the past 30 or 40 years.
For the first time in American history, we have a sitting democratic president who’s in a position to nominate a Supreme Court justice that could make it a five-to-four liberal majority on the Supreme Court. President Obama has nominated Chief Justice Merrick Garland. He’s the Chief Justice of the US Court of Appeals and he was put in that place in 1997.
At that time, he was confirmed by the senate with a bipartisan vote of 76 to 23. Seven Republicans that currently sit on the senate judiciary committee voted for him at that time in 1997. At least five of those particular senators are still in the senate, and they’re in the awkward political position of (at least if they align with their party) voting against a man that they already said was a very good judge and placed as the Chief Justice of the US Court of Appeals. Mitch McConnell and the Republican Party are at a watershed moment politically, and the reason why is because they’re in a position of a prisoner’s dilemma.
President Obama has put forth a centrist candidate with good Republican ties who was confirmed in 1997 with a bipartisan group of senators voting him onto the bench. The Republicans are in a politically difficult situation in which they would have to eat one of their own potentially and do so because they want to continue the policy of obstructionism with regard to President Obama.
Does the Republican Party want a devil that they do know? As opposed to the devil that they don’t. and that all kind of hinges on the political outcome of the election that we’re going to have at the end of the year. There’s a distinct possibility, depending on the political outcome, that we could have a democratic presidential nominee in the form of Hillary Rodham Clinton, who in all likelihood would actually nominate a more liberal justice.
They essentially have three bottles of poison sitting in front of them and they have to choose which one they want to drink. Do they want to go ahead and confirm Merrick Garland with the understanding that he is slightly right of center? Since in 1997, he was confirmed by a the Republicans, or do they want to toe the party line and continue again the policy of obstructionism that they have purported to want to continue.
They want to wait until the election is over and they want the new president to choose the new justice that will become part of the Supreme Court. A byproduct of that is that there are a lot of cases that are going to affect Americans in their day to day lives that are sitting and waiting for a vote on the Supreme Court.
Corporate interests and cases involving abortion that are potentially up for consideration and naturally the Supreme Court cannot consider any of those cases if it doesn’t have its full compliment of judges, because naturally it would end up a four-four tie. So you’re not going to be able to render a judgment in any of those instances. It is a ship that is sitting still on the water with no wind until we get a new Supreme Court justice appointed.
It’s going to be really interesting to see what happens in the next couple of months because, as I said before, the republicans have to decide whether they want a devil that they do, or a devil that they don’t.
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