Special Bulletin 02-2016

Is Justice Dead?

By Dr. Tom Barrett



     Antonin Scalia, the longest serving and best-loved Justice of the U.S. Supreme Court, is dead. Known for his love—almost reverence—for the Constitution, belief that the Founding Fathers meant what they said, a great sense of humor, and for consummate patriotism, Justice Scalia is the one Justice whom the Supreme Court cannot do without. But do without him they must.

     His body was not cold before Obama announced that he would move forward with nominating a successor. He was in such a hurry to make his announcement that he didn’t take the time to show respect for this great jurist by putting on a tie. If you watch the video of his short, unfeeling announcement, you could almost see the glee in his eyes and hear him thinking, “Great! Now I get to nominate a third extreme liberal to the Court!” Finally, after the politics and announcing that he will move forward with a replacement, he got around to a couple of sentences of perfunctory sympathy for Justice Scalia’s family.

     We know that the most Conservative Justice on the Court is dead. But does that mean that justice on the Court is dead? If Obama has his way, it does—at least for several generations. If Obama is able to add a fifth liberal who believes that the Court should change the Constitution rather than interpret it, he will undo decades of hard-fought legal battles that currently protect our Constitutional rights. And his appointees will take us further down the road of reshaping America into a land with no moral compass and few values. We will live in a land where the government is considered to be God (since it will give us the rights it thinks we should have) and God Himself will be considered an amusing myth.

     There is another possibility—that the Senate will refuse to confirm or even consider any Obama nomination. Mitch McConnell, the Republican Senate Majority Leader, has already given his word that that is exactly what he will do. Let’s pray that he will find the strength to keep that promise, because there will be tremendous pressure from the White House, Democrats, and even some liberal Republicans to break his word.

     Is there precedent for an outgoing President to delay making a nomination in such circumstances, and leaving it to the American people to elect a President who will nominate a Justice that “We, the people” can live with? There is. But don’t count on Obama to give a thought to what the people want. He hasn’t considered our feelings or desires in seven years and one month in office, so don’t expect him to change in his last eleven months. He has proven that he hates the values of the country he heads, and he will do everything he can to damage them before he leaves.

     Several people have stated—incorrectly—that it has been eighty years since a “lame-duck” President (using the accepted definition of a President in his last term) has nominated a Supreme Court Justice. Ronald Reagan nominated Justice Kennedy in his second term. But it has been eighty years since a lame-duck President has made such a nomination during an election year (unless his party controlled the Senate). And that is a key distinction.

     We are embroiled in a fight for the soul of our nation. Liberals who believe that government should decide the rights of citizens and make all decisions for them, are waging hand-to-hand combat against conservatives who believe that only God gives us rights, and that one of the most important rights is freedom from government oppression.

     Shouldn’t we allow the citizens—the people that the government is supposed to serve—to choose their next leader and allow him to make this vital appointment? What good will it do for America to elect a Constitutional conservative if all Supreme Court decisions are predetermined by a stacked liberal Court before the arguments are made?

     I’m sure all of this brings questions to your mind….

     “Wouldn’t it be harmful to the nation if there are not nine Justices hearing every case?” Apparently not, because there have been many instances in which this has been the case:

     1)  When a Justice recuses him or herself from a case due to a conflict of interest.

     2)  When a Justice is too ill to serve for a period of time.

     3)  When a Justice passes away and events preclude an immediate replacement.

     By law, a minimum of six Justices must hear every case. So conceivably there could be a case during which there is a vacancy caused by death, a Justice too ill to work, and a Justice who recuses him or herself. The case could still be heard.

     “Isn’t a whole year a terribly long time to be short one Justice?” The U.S. Supreme Court only hears cases about four and a half months out of every twelve. The official “Term” begins every year in early October and ends in late June, about nine months. But the Term is divided between “Sittings” and “Recesses,” which alternate at approximately two week intervals. So the Court hears cases about four and a half months and is in recess about the same length of time, doing other work.

     If there is no Justice nominated until our next President is sworn in, there will be one Justice missing from now until the end of June (four and a half months), and from the beginning of next October until mid-January (about three and a half months). That adds up to eight months divided between two Terms, roughly half of which are Court recesses. So for four months oral arguments will be presented to eight rather than nine Justices. By the way, arguments are only heard for four hours a day, so you could say that in the real world only two months would be missed.

     Has this happened before? Many times. There have been numerous vacancies lasting over a year. In modern times (since 1869 when the number of Justices was settled at nine), the longest vacancy was three hundred ninety-one days. That was because the Democrats rejected Nixon’s first two nominees to fill the vacancy left when Justice Abe Fortas resigned.

     Prior to that there were several vacancies lasting over two years, most notably during the administration of John Tyler, who had a hard time getting along with Congress. During his Presidency the Senate rejected nine of his nominees! One vacancy lasted four hundred twenty-four days. The longest was eight hundred thirty-five days—well over two years!

     In recent times, sixteen of thirty-four Supreme Court nominations have been rejected. So don’t let Obama and his stooges convince you that it is the “duty” of the Senate to confirm his nominees. Their duty is to advise the President concerning his nominees and consent to them if they feel the nomination is in the nation’s interest. If the President doesn’t take the Senate’s advice, it is under no obligation to consent to his nomination.

     What are the practical things we need to consider about the upcoming battle to determine whether Obama will get a nominee confirmed in the next eleven months? Looking at the two possible scenarios, we see two greatly differing outcomes:

1)  Obama will nominate a liberal judge. The Senate, afraid of being seen as “mean” will cave in. From that point on, every Supreme Court decision will be made by a majority of liberals. The conservative, Constitutional view will not be heard.

2)  Obama will nominate a liberal judge. The Senate will show courage and refuse ANY nominee Obama puts forth. The maximum number of Justices that will hear any case until the next President takes office will be eight.

     There will be tied votes. That has happened before, as mentioned above, for a variety of reasons. When the Supreme Court hears a case, it almost always comes up to them on appeal from a lower court. If there is a tied vote at the Supreme Court, the lower court’s decision will stand. However, the case can never be used as Supreme Court precedent (often very important in determining future cases). The effect will be as if the lower court had ruled and its opinion had never been appealed to the Supreme Court.

     Will this be good or bad for conservatives? I don’t have the time to discuss all of the important cases that would have been decided had Scalia lived. Suffice it to say that in most of them, based on his previous decisions, it was clear which way Scalia would have voted. The bottom line is that in some cases a tie vote will be good for conservatives, and more often will be negative.

     The bottom line is that we can live with this—and through this. Yes, there will be confusion, disruption, and some pain if Republicans stick to their principled decision not to allow Obama to put one more Justice on the Court to pervert its purpose. But it will be worth it. Because after eight years of Obama, and only two angry clowns to run against, there will be a conservative in the White House next January. And he will nominate a Justice who will uphold the Constitution, not try to rewrite it because of personal ideology.

     In this election year, as in all others, there has been much discussion about the most important work a President must do. We hear that jobs, defense, welfare reform, taxes, the economy, and many other things are his or her most critical responsibilities. But a President’s most critical responsibility is the one that will probably occupy the smallest percentage of his time, but is more important than all of the others mentioned above, because it will impact our nation long after his time in office has ended. That responsibility is searching for, vetting, and appointing Justices to the U.S. Supreme Court.

     Let us pray that God will bless the United States with a Justice like Antonin Scalia, who loved God, his family, and his country.

     I will close with one of my favorite quotes from Justice Scalia: “The Constitution is not a living organism. It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”





There’s Ample Precedent for Rejecting Lame Duck Supreme Court Nominees



Obama has Opening to Shift Supreme Court Balance



The Court and Its Procedures

Supreme Court Justices have Often Recused themselves from Cases before the Court

Chief Justice Defends Supreme Court's Recusal Policy

This article was originally published on February 15, 2016 on ConservativeTruth.org.


Dr. Tom Barrett is the Founder and Publisher of http://www.conservativetruth.org/. He has written thousands of articles that have been republished in national newspapers and on hundreds of websites, and is a frequent guest on radio and television shows. His unique viewpoint on social, moral and political issues from a Biblical worldview have resulted in invitations to speak at churches, conferences, Money Shows, colleges, and on TV (including the 700 Club).

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