Jim de Bree | Supreme Court, a Strange Case of Political Football

Jim de Bree
Jim de Bree

When I was a kid, we used to play football in the street. Because our game of football was not organized, the rules often were in a state of flux. There always was someone who wanted to bend the rules to their advantage. Sometimes the player who owned the football was able to change the rules under the operating paradigm of “my ball-my rules.” If we did not conform the rules to comply with the ball owner’s request, he simply went home and took the football with him.

Imagine two teams competing for the championship. The red team owns the ball and changes the rules so that when they were in possession of the football, they only needed to advance the ball 5 yards to get a first down. It becomes very easy for the red team to score a touchdown.

When the blue team regains possession of the football, they have to advance the ball 10 yards in order to get a first down. The blue team protests, saying this is unfair and suggests they should get six downs, instead of four, to advance the ball 10 yards and obtain a first down.

In response, the red team howls and objects, saying that allowing two extra downs is an unacceptable rule change. The red team successfully changed the rules to its advantage and simply was not interested in providing relief to the blue team. 

While this scenario has probably played itself out countless times in the annals of kids playing street football, we are seeing a similar phenomenon inside the Beltway.

In January 2016, Supreme Court Justice Antonin Scalia passed away suddenly and unexpectedly. President Obama nominated his replacement, Merrick Garland. 

Just as a quarterback sometimes calls a trick play, when the president’s party does not control the Senate, the president nominates a candidate who is an apparent centrist. The president secretly hopes that the candidate will ultimately lean in the president’s direction after Senate confirmation.

However, 2016 was an election year and Senate majority Leader Mitch McConnell changed the longstanding procedures for obtaining Senate approval of a judicial nominee. McConnell stated that because 2016 was an election year, he believed the American people should have a say in the decision as to who will replace Justice Scalia. Using that position as justification, Sen. McConnell refused to allow confirmation hearings or a vote on Mr. Garland’s nomination during President Obama’s term in office.

Legal scholars debated the legitimacy of McConnell’s actions. Litigation to force the Senate to hold confirmation hearings and vote on Mr. Garland’s nomination was unsuccessful. 

In defense of his position, McConnell stated that the Democrats contemplated similar action in 1992 after President George H.W. Bush’s nominee, Clarence Thomas, was confirmed. The Democrats claim that Sen. Joe Biden made the proposal in jest and they never seriously considered implementing such action.

We are now 17 months away from the next presidential election and Sen. McConnell was recently asked, “If there is a vacancy in the Supreme Court before that election, should the American people have a say in the judicial appointment?” 

Contrary to his previous position, his response was that he would hold hearings to confirm a nominee who was nominated by President Trump. He did not provide an explanation for his change in position.

Given the fragile health of Ruth Bader Ginsberg, if there is a Supreme Court vacancy before the next election, it is likely to be her seat. This would present a golden opportunity for the Republicans to add yet another conservative justice to the court.

Sen. McConnell controls the process, just as the boy who owns the football can control whether the game is played. Like that selfish boy, he feels justified in manipulating the rules to suit his party’s political needs.

In response, the Democrats have suggested that, when they next control the Senate and the White House, they will increase the number of justices to ensure that there no longer is a conservative majority. Not surprisingly, Republicans express indignation because such a measure would violate historical precedent. 

In the 1930s, President Roosevelt attempted to increase the size of the court in an effort to obtain a friendly majority, but was strongly rebuffed by Congress.

The difference is that this time the proposal is in response to the Republicans moving the goal posts, which apparently are becoming increasingly mobile. Whether it is failing to consummate the nomination process or stacking the Supreme Court, this is partisanship before citizenship. 

I am reminded of President Eisenhower’s inaugural speech wherein he stated, “A people that values its privileges above its principles soon loses both.” 

We are moving in that direction and over the long term, politically motivated action will not serve us well.

Jim de Bree is a Valencia resident.

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