Supreme Court Nominee Is A Fool's Errand

[From article]
[Marc] Thiessen asked the very cogent question, "Who could possibly want to be that nominee?" He noted that whoever it might be has already been put on notice that it is, in effect, a judicial suicide mission and likened that person to a kamikaze pilot. As soon as Thiessen spoke, I realized he had neatly and accurately encapsulated the situation facing the White House right now into two words: kamikaze mission.
[. . .]
On the other hand, if Obama puts forward a sacrificial and minimally qualified candidate who might be willing to don the silk headscarf of sacrifice and volunteer to go down in flames for fifteen minutes of footnote fame, then the Republicans can point self-righteously to those absent qualifications as sufficient reason for grimly blowing the ambitious aspirant from the skies of fleeting legal glory.
From a political history perspective, Thiessen nailed it; it's a kamikaze mission, and Barry will have to find a fool to fly it.

http://www.americanthinker.com/blog/2016/02/barack_obamas_kamikaze_justice.html

February 24, 2016
Barack Obama's kamikaze justice
By Russ Vaughn

Recent History of Democratic Party Supreme Court Appointment Hate Campaigns

[From article]
However, if the Democrats stick to principles they would honor their own Senate Resolution 334 which urges no SCOTUS recess appointments. The likelihood of that occurrence is about on par with Bill Clinton honoring his marriage vows.
With decades of practice, the Democrats have mastered the art using the judiciary for agenda advancement and they play to win, no holds barred. Republicans still believe their Senatorial opponents are gentlemen who play by Robert’s Rules of Order. They do so without supporting evidence.
Past hearings have been fraught with difficulties, false charges, racist allegations, hypocrisy and despicable politics. As the battle looms it is worth recalling the advice of Sun Tzu: “If ignorant both of your enemy and yourself, you are certain to be in peril.”
In order to move forward successfully, a refresher on the past is in order:
Robert Bork (1987) Kevin Gutzman, then an intern for Congressman Dick Armey, described the hearing as having “all the makings of a circus.” Gutzman also described the men aligned against Judge Bork as being: “the Democratic majority on the Judiciary Committee, includ(ed) a chairman (Sen. Joe Biden) in the midst of a scandal over his having delivered a speech plagiarized from a British politician, one member (Patrick Leahy) who had been tossed off the Intelligence Committee by its Democratic chairman for leaking documents, another senator (Robert Byrd) who had been a Ku Klux Klansman, and Kennedy, infamous for being tossed out of Harvard for cheating”
Indeed the men who sat in judgement of Robert Bork had issues of their own, but as we know Democrats are as forgiving of themselves as they are unforgiving of the opposition.
Senator Kennedy fired a slanderous broadside against Bork:
“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
The well prepared speech had been on hold as the Democrats had been lying in wait for Bork’s expected nomination. The Republicans were stunned, and Bork, was ‘Borked’ and ultimately rejected 42-58. Judge Bork became the fourth Republican nominee rejected in the past 100 years. A Democratic president has not had a nominee rejected since 1894 when Wheeler Hazard Peckham was voted down by the Senate.
Clarence Thomas (1991) As ugly and as hard fought as the Bork hearing was, things got worse. Thomas, nominated to replace civil rights icon Thurgood Marshal, was seen as being too conservative and thus not ‘black enough’ for such an honor. In reality, Thomas was a person worthy of emulation: born dirt poor, a direct descendent of slaves, he fought discrimination while young including desegregating the high school he attended. Hard work, as well as dedication to his studies, allowed him to rise above lesser individuals who lacked his will, character, and intellect. None of that mattered to Democrats or their backers in the NAACP; Clarence Thomas was seen as a Tom, pure and simple, thus the knives came out to stab him in the back.
Having learned from the decimation Bork, Thomas treaded lightly with circumventive responses to loaded questions. The Baltimore Sun in its piece; “The Real Clarence Thomas?”described the testimony:
“Too often… he chose to retreat into such safe responses as, "I have to wait to read the briefs and hear the oral arguments." Too often he obfuscated when asked about prior writings.
[. . .]
As the hearing progressed the Democrats saw that they were losing this battle. Committee Chairmen Joe Biden’s questioning had failed to reveal a chink in the defensive armor of Thomas. The Democrats were reduced to bringing in a ringer; an unknown women named Anita Hill. Her testimony elicited the intended, feigned outrage, fueled by coordinated efforts. However, Thomas, now justifiably outraged, struck back:
“This is a circus. It’s a national disgrace. And from my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.”
Thomas fought back and was confirmed by the narrowest of margins.
Miguel Estrada (2003) George Bush’s nominee to the D.C. Circuit Court of Appeals, was widely regarded as a prospect for a future appointment to the Supreme Court. If Clarence Thomas was not black enough for the left, Estrada was not brown enough. There are few things the left hates more than a person of color becoming, strong, well educated, successful, and Republican. People who rise above and desert them must be destroyed, least others get the same ideas that achievement is possible without the governmental largess of the Democrats. Best to nip this Estrada fellow in the bud as soon as possible.
The day before the committee vote the New York Times editorialized:
“Mr. Estrada, now a lawyer in Washington, also had an opportunity to elaborate on his views, and assuage senators' concerns, at his confirmation hearing, but he failed to do so. When asked his opinion about important legal questions, he dodged.”
Let’s be clear regarding the hearings of Bork versus that of Estrada: Bork was rejected, because he was honest in his wholly defendable legal views, while Estrada was rejected for evasiveness and lack of clarity regarding his views.
Damned if you do, damned if you don’t.
Keep the above point in mind also as pertains to the future testimony of President Obama’s nominee: Sotomayor.
Regarding the ‘wise Latina’s’ testimony the NY Times stated:
“She strove to be as circumspect about her views as possible, while the Senate Judiciary Committee members played their preset roles as defenders and interrogators.”
[. . .]
Sotomayor was confirmed, as well as Elena Kagan, who when combined with Ginsberg form a solid, unabashed trio of extreme left ideologues. All three were accepted by Senate Republicans with a minimum level of resistance.
Obama will take the rare opportunity to nominate someone as a replacement for Scalia. Democrats will fight hard for the candidate. However, the rules need to be applied fairly and equally to both sides, but they never are. The real problem is the Republicans have yet to come to that realization.

http://www.americanthinker.com/articles/2016/02/before_the_fireworks_a_refresher_on_supreme_court_nominations.html

February 19, 2016
Before the Fireworks: A Refresher on Supreme Court Nominations
By Dennis Lund

Pat Buchanan: Leave Scalia's Seat on Supreme Court Vacant

Justice Antonin Scalia at Harvard University. "It was this big. Really."

[From article]
It is a measure of the stature and the significance of Justice Antonin Scalia that, upon the news of his death at a hunting lodge in Texas, Washington was instantly caught up in an unseemly quarrel over who would succeed him.
But no one can replace Justice Scalia.
He was a giant among jurists. For a third of a century, he led the conservative wing of the high court, creating a new school of judicial thought called “originalism.”
But originalism is not conservatism, which, in the judicial era that preceded Scalia, often meant court decisions that “conserved” the radical social revolution Earl Warren’s court had imposed upon us.
[. . .]
I remember being called into the office of White House Chief of Staff Don Regan, 30 years ago, to be informed that the judge whom Ronald Reagan would name to replace William Rehnquist, who had been named Chief Justice, would be U.S. Appellate Court Judge Antonin Scalia.
Regan was grinning at me as he made the announcement, and I let out of a whoop of victory.
[. . .]
The window for any Supreme Court nominees should be slammed shut — until 2017.
Republicans should tell our “transformative” president that his days of transforming America are over, that he will not be remaking the court into a bastion of the left after his departure, and that, while he has the right to nominate whom he wishes, the U.S. Senate will exercise its right to reject any nominee he sends up. If the court will then face many 4-4 decisions for the next year, so be it.
[. . .]
Republicans should tell the American people that when they vote in November they will be deciding not only the next president, not only which party shall control Congress, they will be deciding what kind of Supreme Court their country should have. Which is as it should be.
If the GOP can’t win this argument, they have lost the country.
http://buchanan.org/blog/leave-the-scalia-chair-vacant-124793

Leave the Scalia Chair Vacant
Monday - February 15, 2016 at 10:18 pm
By Patrick J. Buchanan

Democratic Senators Opposed Recess Appointments To Supreme Court

Antonin Scalia

[From article]
David Bernstein at the Washington Post’s Volokh Conspiracy blog:
Thanks to a VC commenter, I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “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.” Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment.

http://www.americanthinker.com/blog/2016/02/dems_in_senate_passed_a_resolution_in1960_against_election_year_supreme_court_appointments.html

February 14, 2016
Dems in Senate passed a resolution in1960 against election year Supreme Court appointments
By Thomas Lifson

U.S. Appeals Court Affirms White House Appointees Serve Illegally

Is there anything that this administration does that is legal?

[From article]
The D.C. Circuit Court of Appeals ruled Friday that Lafe Solomon, the former acting general counsel for the National Labor Relations Board from 2011 through 2013, had been serving in violation of the law governing federal appointments. It was the latest example of a federal court throwing out President Obama's picks for the board, which is the main federal labor law enforcement agency.
Last year, the Supreme Court ruled in the case Noel Canning v. NLRB that three of Obama's 2012 recess appointments to board were unconstitutional. The decision voided an entire year's worth of agency decisions.
[. . .]
Both said the ruling showed how "fast and loose" Obama played with the rules for federal appointments when it came to the NLRB.
"The bigger takeaway is just how aggressively the Obama Administration moved to influence labor policy to the benefit of Big Labor, even when they lacked the legal authority to act," Semmens said

http://www.washingtonexaminer.com/courts-keep-ruling-obama-labor-officials-serve-illegally/article/2569978

Courts keep ruling Obama labor officials serve illegally
By SEAN HIGGINS
8/11/15 12:01 AM

US Senator McConnell Wins One Over Obama

From article]
Republicans argued they were meeting during the recess — in so-called pro forma sessions every three days — and still maintained control over the confirmation process. But the administration said the pro forma sessions held by the Senate every three days during the intrasession break were only a sham designed to keep Obama from filling the posts.
At the meeting McConnell's team agreed they were left with two options to proceed, since Senate Majority Leader Harry Reid would not authorize an institutional lawsuit on behalf of the Senate. Senate Republicans concerned about Obama's use of recess appointments could either sue as individual members, or they could join a private party case as a group.
[. . .]
The liberal Justice Breyer's implicit criticism of the move from Obama, who often touts his credentials as a former constitutional law professor, was particularly biting. Breyer wrote, simply, that only the Senate could decide when it was in recess — not the president.

http://www.businessinsider.com/nlrb-decision-obama-mcconnell-supreme-court-boehner-lawsuit-recess-appointments-2014-6

How Mitch McConnell Crushed Barack Obama At The Supreme Court

BRETT LOGIURATO
JUN. 28, 2014, 9:00 AM

Obama Cabinet Members Problematic

[From article] "The common theme with these Cabinet secretaries is loud, uninformed rhetoric; a lack of practical experience; a certain utopian zealotry -- and an expectation that there are rules for government grandees and quite different ones for the rest of us."

http://townhall.com/columnists/victordavishanson/2012/05/03/cabinets_gone_wild

Cabinets Gone Wild
Victor Davis Hanson
May 3, 2012
TownHall.com

What is a Recess Appointment?

What is a recess appointment?

Article II, Section 2 of the Constitution grants the President the authority to:

Nominate, and by and with the Advice and Consent of the Senate, . . . appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Under normal circumstances, when a vacancy occurs in one of these posts, the President nominates an individual to fill the position and the Senate then votes to either confirm or reject the President's nominee. However, the Framers anticipated that vacancies would occur while the Senate was not in session. The Constitution provides that (also in Article II, Section 2): 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.

While this provision is fairly straightforward, it has produced several differences of opinion between the Congress and the President. How many days must the Senate fail to convene for it to lapse into a recess? Does a position have to become vacant during a Senate recess for a valid recess appointment to be made or does the position simply have to remain vacant during the recess? Instead of allowing the Court to settle these disputes, the Congress and the President have generally agreed to work together to solve them. This makes sense because neither side has a particularly clear interest in forcing the issue. If the President tries to force recess appointments on the Senate, thus circumventing the normal "advice and consent" process, the Congress can refuse to appropriate funds to pay the salaries of the appointees. The Senate might also take the extraordinary measure of blocking future nominations to "teach the President a lesson." Furthermore, if the Senate took a hostile approach to all recess appointments, it would essentially have to remain in session all of the time--an inefficient solution, to say the least.

Currently, the President and Congress generally adhere to a procedure for recess appointments that minimizes the potential for interbranch conflict. If the President wishes to make a recess appointment or appointments, he generally sends a list of persons to be appointed to members of the Senate shortly before or during a recess. If Senators express serious concerns about a nominee, the President will likely hold off on the appointment until the Senate is back in session and the normal procedure can be followed.