Stephen Maseda | De Bree Brushes Over Facts

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Mr. Jim De Bree’s commentary (June 6, “Supreme Court, a Strange Case of Political Football”) brushes over some significant facts, and seems to support the idea that the Senate under Mitch McConnell essentially “stole” a nomination from President Obama and Judge Merrick Garland. Initially, neither a president nor a judicial nominee has a right to a nomination nor confirmation by the Senate (which is why the litigation seeking to require a vote failed). 

The comparison to the Clarence Thomas nomination fails to mention that Justice Thomas was nominated in July 1991, over 16 months prior to the November 1992 election, and thus his consideration by the Senate was consistent with the treatment of the Garland nomination, who was nominated less than one year prior to the election. (Eight months to be exact). 

The Biden rule, cited by McConnell, related to a nomination less than one year prior to the election, when the Senate is controlled by a party other than the president’s. If you have watched the Biden clip, if he was joking (something I had not heard before), he was sure being serious about it.

The current kerfuffle on which Mr. de Bree asserts that the rules are being changed in the middle of the game relies in part on the Thomas confirmation, which as we see is factually distinct. More importantly, there is only one rule, and it remains unchanged since the Constitution’s adoption — the nominee must be confirmed by the Senate, which is under no obligation to confirm, otherwise why require confirmation?

What is the practical distinction between the president withdrawing a nomination that is “in trouble” and the Senate simply refusing to consider a nomination? Or for that matter the Senate voting not to confirm? Mr. de Bree apparently believes the Senate must vote, a position he assumes but does not discuss, and for which he provides no support, legal or factual. 

Mr. de Bree clearly implies that it is the Republicans who are changing the rules. In doing so he overlooks the shabby history of the Democrats in treating Supreme Court nominations beginning with the Robert Bork nomination in 1987, a confirmation process led by Democrats including the chairman of the committee, Joe Biden, that created a new verb — to Bork. 

This treatment by Democrats continues to this day.

Finally, if the Democrats seek to change the makeup of the court, they will be doing so for purely political reasons. Any assertion on their part that they were driven to it by the Republicans is pure sophistry.

These disputes have a common progenitor — Roe vs. Wade, a case that has haunted our politics since its issuance, by creating a right to abortion out of the due process clause (the 5th and 14th Amendments) under rules made up by the Court. 

In doing so, the Court removed decisions concerning abortion from the political process, where the people could discuss and decide if, when and in what circumstances abortion would be legal, and has created an argument that will haunt us until it is overturned and the issue returned to the people. 

While the Court is a powerful institution, it can not change science, which leads to the conclusion that life begins at conception, nor the belief that killing is wrong. 

We can only solve this issue by a debate among the people — in short, the legislative process. 

Stephen Maseda, Valencia

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