{"id":3495,"date":"2016-02-18T21:11:26","date_gmt":"2016-02-18T21:11:26","guid":{"rendered":"http:\/\/georgiawasp.com\/?p=3495"},"modified":"2020-04-29T01:23:13","modified_gmt":"2020-04-29T01:23:13","slug":"on-the-new-supreme-court-2","status":"publish","type":"post","link":"http:\/\/georgiawasp.com\/?p=3495","title":{"rendered":"On the “new” Supreme Court"},"content":{"rendered":"

\"\"<\/p>\n

Moses as the original supreme court<\/a>, on advice and counsel<\/a><\/em>\u00a0of \u00a0his father-in-law\u00a0Jethro<\/a><\/em>…<\/p>\n

* \u00a0 * \u00a0 * \u00a0 *<\/p>\n

The U.S. Supreme Court is in the news, again…<\/p>\n

Last Saturday night I was\u00a0channel surfing<\/a>\u00a0at home. \u00a0(Waiting for a ride to The Buddy Holly Story<\/a>\u00a0at the\u00a0Legacy Theatre<\/a>, Tyrone GA, shown at right.<\/em>) \u00a0 One channel had this news flash<\/a>: “Antonin Scalia, Supreme Court justice, dies at 79<\/a>…”<\/p>\n

I was shocked, to say the least.<\/p>\n

Later – at the theater – I mentioned Scalia’s death to a young(er) lady-friend. \u00a0 (Whose political views are slightly to the right of\u00a0Attila\u00a0the Hun<\/a>.<\/em>) \u00a0She said something to the effect that now “that [expletive deleted<\/a>] Obama” would be able to name a new Supreme Court justice who would – shall we say – “tilt the balance of power.”<\/p>\n

I didn’t expect her vehement response. \u00a0(Heck, the poor guy wasn’t even buried yet.<\/em>) \u00a0So – diplomatically – I smiled and changed the subject. \u00a0However, after further review I thought her presumed outcome unlikely. \u00a0(With Republicans controlling the Senate and all<\/em>.)<\/p>\n

With that in mind – and after more<\/em><\/strong> time to review – allow me to prognosticate<\/a>.<\/p>\n

With the presidential election less than nine months away, there’s a pretty good chance Senate Republicans will block any<\/em><\/strong> Obama nomination. \u00a0Which means the next president will have to pick his – or her – favorite nominee, but possibly with a different<\/em> Senate.<\/p>\n

Which is another way of saying conservatives could settle for a moderate nominee now<\/em>, or risk seeing a truly liberal nominee confirmed in the foreseeable future.<\/p>\n

\"\"The thing is, in the recent past the balance of power in the Senate has shifted every two years or so. \u00a0And in 2016, 24<\/em><\/strong> Republican senators are up for re-election, compared to only ten<\/em> <\/strong>Democrats. \u00a0(Including “seven in states President Obama” – at right with Mitt Romney – “carried twice.”)<\/em><\/p>\n

So even if the next president is Republican, he’ll face the same hostile Senate Obama faces now. \u00a0(Which could bring more gridlock.<\/em>) \u00a0 On the other hand, if the next president is a Democrat<\/em>, he – or she – will be able to fill the vacancy with anyone he – or she – chooses.<\/p>\n

Then of course there’s the fact that\u00a0newly-elected US senators<\/a>\u00a0will take office on January 3, 2017. \u00a0On the other hand, President Obama’s replacement won’t take office until January 20. \u00a0In other words, if the new Senate is indeed Democratic<\/em>, Obama will have 17 days in which to name his own replacement. \u00a0(And plenty of time to prepare for the Senate’s “nuclear option<\/a>.”)<\/em><\/p>\n

Which is one reason I say – if they were smart – Senate\u00a0Republicans could settle for a moderate nominee now, or risk a true-liberal nominee in the really<\/em> foreseeable future.<\/p>\n

Personally – if somebody held a gun to my head and said, “Make a bet with your total life savings” – I’d have to put my wager on the latter option.<\/p>\n

And all of this raises some further<\/em> interesting questions. \u00a0Like, “Have these nominations always been so\u00a0acrimonious<\/a>?” \u00a0And, “Has the Supreme Court always been this powerful?” \u00a0Or possibly, “Just how did this ‘supreme court’ get started in the first place?”<\/p>\n

\"091507-USCNeb-CorsoHerbstreitFor those who think the Supreme Court was only “invented”\u00a0as late as 1787’s\u00a0Constitutional Convention<\/a>, the answer to that<\/em> would be, “Not so fast, my friends<\/a>!”<\/p>\n

I noted – in a post in another blog – that the idea of a “supreme court” goes back over 3,000 years ago. \u00a0It seems the idea was hatched by\u00a0Jethro<\/a>, whose daughter\u00a0Zipporah<\/a>\u00a0married\u00a0Moses<\/a>. \u00a0(See On Jethro inventing the supreme court<\/a><\/em>.)<\/p>\n

That prior post cited\u00a0Exodus 18:13-27<\/a>. \u00a0Here’s what happened.<\/p>\n

Moses grew up a literal “Prince of Egypt<\/a>.” \u00a0But about the time he learned of his Hebrew heritage, he had to run<\/em> away<\/em> from Egypt. \u00a0(Basically as a\u00a0fleeing felon<\/a>. \u00a0See\u00a0Exodus 2:12<\/a>.)<\/em>\u00a0 He fled to Midian, where he met and married the daughter of Jethro<\/a>, noted above.<\/p>\n

Then God made him return<\/em><\/strong> to Egypt, to “set my people free.” \u00a0While he was doing that, Moses left his wife and two sons with Jethro, in Midian. \u00a0Once he accomplished his mission, he came back home and told Jethro all he’d done. \u00a0Then he sat down to “judge the people.”<\/p>\n

That’s when the trouble started. \u00a0(Or more precisely, got worse<\/em>):<\/p>\n

Moses took his seat to serve as judge for the people, and they stood around him from morning till evening.<\/span>\u00a0\u00a0<\/span>When [Jethro] saw all that Moses was doing … he said, \u201cWhat is this you are doing for the people? \u00a0Why do you alone[?] \u00a0<\/span>Moses answered him, \u201cBecause the people come to me to seek God\u2019s will.<\/span>\u00a0\u00a0\u00a0<\/sup>Whenever they have a dispute, it is brought to me, and I decide between the parties and inform them of God\u2019s decrees and instructions.\u201d<\/span><\/p><\/blockquote>\n

Jethro saw right away that the work was way too much for one man. \u00a0So he advised Moses – basically – to\u00a0delegate authority<\/a>. \u00a0He said to “select capable men,” and trustworthy, “and appoint them as officials” – judges – “over thousands, hundreds, fifties and tens.”<\/p>\n

\"\"These “lower court” judges – illustrated at right – could handle the simple cases, of which there were many. \u00a0(After they’d been given the functional equivalent of today’s legal education<\/a>.<\/em>) \u00a0In turn, with Moses only having to handle difficult cases, “that will make your load lighter:”<\/p>\n

Moses listened to his father-in-law… \u00a0<\/span>He chose capable men from all Israel and made them leaders of the people, officials over thousands, hundreds, fifties and tens. \u00a0<\/span>They served as judges for the people at all times. \u00a0The difficult cases they brought to Moses, but the simple ones they decided themselves<\/strong>.<\/span><\/p><\/blockquote>\n

And that\u2019s the basic<\/em><\/strong> idea behind today’s Supreme Court. \u00a0That it will only deal with \u201chard cases,\u201d leaving minor cases for lower-court judges. \u00a0(Like Moses did<\/em>.)<\/p>\n

Of course that was before the idea of the\u00a0separation of powers<\/a>. \u00a0(Dividing American government into three distinct branches.<\/em>) \u00a0Then too, that was \u00a0before today’s nominating process evolved into a true\u00a0media event<\/a>. \u00a0(If not\u00a0Media circus<\/a>.) \u00a0<\/em><\/p>\n

With that in mind I say,\u00a0“Here’s looking ahead – if not forward<\/strong> – to a fascinating next-nine-months<\/em>.”<\/p>\n

* \u00a0 * \u00a0 * \u00a0 *<\/p>\n

\"\"In closing, some final notes on Justice Scalia. \u00a0Like one from\u00a0Ethan Bronner<\/a>\u00a0(32). \u00a0The occasion was Scalia’s first being nominated to the Court in 1986. \u00a0(Over\u00a0Robert Bork<\/a>, at left, with President Reagan<\/em>):<\/p>\n

\n

Although deeply and somewhat idiosyncratically conservative, Scalia had little real controversy in his record. \u00a0Nicknamed Nino, he was also an irrepressibly charming man with a hearty, warm laugh, a weakness for opera, and many friends in both the judiciary and the academy.<\/em><\/p>\n<\/blockquote>\n

And a note that – every once in a while – he could spring a surprise in his opinions.<\/p>\n

For example, the 1988 case,\u00a0Coy v. Iowa<\/a>. \u00a0John Coy was convicted of sexually assaulting two 13-year-old girls. \u00a0At trial, the girls testified behind a large screen, so they didn’t have to look at Coy as they testified. \u00a0When the case got to the Supreme Court, Justice Scalia wrote the majority opinion reversing<\/em><\/strong> the convictions, saying they violated the\u00a0Confrontation Clause<\/a>.<\/p>\n

In 1989, the\u00a0Pepperdine Law Review<\/a>\u00a0wrote a blistering rebuke of Justice\u00a0Scalia’s\u00a0opinion. (And\/or his legal reasoning.)<\/em> \u00a0See\u00a0Coy v. Iowa: \u00a0A Constitutional Right of Intimidation<\/a>:<\/p>\n

The Supreme Court’s holding in Coy v. Iowa<\/span> is infected with faulty reasoning and is inconsistent with contemporary, mainstream confrontation clause analysis… \u00a0The new requirement of actual face-to-face confrontation is not supported by logic nor is it founded on legal precedent… \u00a0Coy’s addition to this area of the law is not logical, but deviates from a long line of case law and ultimately adds a right that exists solely by itself. \u00a0It appears that the Supreme Court has created<\/strong> a constitutional right of intimidation. \u00a0[E.A.]<\/p><\/blockquote>\n

Which leads to a couple more asides. \u00a0For one thing, Pepperdine law school isn’t exactly known as a “bastion of liberal thinking.” \u00a0For another,\u00a0Ken Starr<\/a>\u00a0– bane of the (Bill) Clinton presidency – served as dean<\/em> of the law school from 2004 to 2010. \u00a0So:<\/p>\n

Like I said, sometimes “Nino” could surprise you…<\/em><\/h3>\n

* \u00a0 * \u00a0 * \u00a0 *<\/p>\n

\"\"<\/p>\n

A “more conservative” – 1956 – view of Jethro (with Charlton Heston)…<\/em><\/p>\n

* \u00a0 * \u00a0 * \u00a0 *<\/p>\n

The upper image is courtesy of\u00a0bible-history.com\/studybible\/exodus\/18\/2<\/a>. \u00a0See also\u00a0On Jethro inventing the supreme court<\/a>. \u00a0Or\u00a0see Exodus 18: Moses and Jethro – Bible Encyclopedia<\/a><\/em>.<\/p>\n

Re: Senators up for re-election in 2016. \u00a0See\u00a0United States Senate elections, 2016 – Wikipedia<\/a>, and\u00a010 senators who could lose in 2016 | The Hill<\/a>.<\/em><\/p>\n

The Romney-Obama photo is courtesy of\u00a0Barack Obama – Wikipedia<\/a><\/em>. \u00a0The caption: \u00a0“Former Governor Mitt Romney and President Barack Obama shake hands in the Oval Office<\/a> on November 29, 2012, following their first meeting since President Obama’s re-election.”<\/em><\/p>\n

Re: Obama’s 23-day window. \u00a0See\u00a0How Obama Could Win Supreme Court Battle \u2014 Even If Republicans Take the White House<\/a><\/em>.<\/p>\n

The “not so fast” image is courtesy of\u00a0Lee Corso – Wikipedia<\/a><\/em>. \u00a0See also\u00a0Lee Corso\u2019s \u2018Not so fast, my friends\u2019 gets autotuned (Video)<\/a><\/em>.<\/p>\n

The “lower court judges” image is courtesy of\u00a0Judge – Wikipedia<\/a><\/em>. \u00a0The caption: \u00a0“Judges at the International Court of Justice<\/a><\/em>.”<\/em><\/p>\n

Re: Today\u2019s nominating process as “a true\u00a0media event<\/a>:”<\/em><\/p>\n

\u2026in the modern appointment process, Presidents typically announce their Supreme Court nominations to the nation before broadcast television cameras in carefully staged presidential news events. \u00a0In turn, nearly all of the official confirmation process that follows \u2026 is conducted in public session, receives intensive news media coverage, and is watched by hundreds of thousands (and sometimes millions) of American television viewers.<\/p><\/blockquote>\n

See\u00a0Supreme Court Appointment Process \u2026 Foreign Press Center<\/a>.<\/em><\/p>\n

The Ethan Bronner quote is from his 1989 book, Battle for Justice[:] \u00a0How the Bork Nomination Shook America<\/strong>. \u00a0(Anchor Books, published by Doubleday, at page 32.) \u00a0 Bronner also noted – at pages 117-18 – the prevailing Republican opinion when Richard Nixon was president:<\/em><\/p>\n

In a publicized letter to Ohio Senator\u00a0William B. Saxbe<\/a>, later Attorney General, Nixon accused the Senate of denying him a historic right to see his choices appointed. \u00a0That right, he said, had been granted to all previous presidents, and the advice and consent function of the Senate was clearly meant to be no more than\u00a0pro forma<\/a>.<\/p><\/blockquote>\n

Re: Coy v. Iowa. \u00a0See also\u00a0Protection of Child Witnesses and the Right of Confrontation; \u00a0A Balancing of Interests<\/a>.<\/em><\/p>\n

Re: Pepperdine Law School. \u00a0See\u00a0My daughter’s applying to Law schools – She said Pepperdine<\/a><\/em>? \u00a0One person commented that it was extremely conservative and with a “strong Christian bent.” \u00a0Another response: \u00a0“Is she political? \u00a0If so where does she lean? \u00a0Pepperdine isn’t exactly a school most liberal leaning [sic] would decide on.” \u00a0And finally see\u00a0<\/em>The State of LGBT Affairs at Pepperdine University<\/a><\/em>:\u00a0<\/em><\/p>\n

In 2014, the university was ranked by the Princeton Review as No. 7 on its list of \u201cTop 20 LGBT Unfriendly Schools<\/a>.\u201d \u00a0Pepperdine ranked No. 19 in 2013 and No. 17 in 2011. \u00a0College Magazine also ranked Pepperdine as No. 4 on its list of \u201cTop 10 Most Prude Colleges<\/a>,\u201d in 2012, citing the university\u2019s actions in regard to LGBT students as a factor in its ranking.<\/p><\/blockquote>\n

Re: Scalia’s opinion in Coy v. Iowa<\/span>. \u00a0He traced the right of Confrontation back to the “Roman Governor Festus, discussing the proper treatment of his prisoner, Paul[:] \u00a0‘It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face.'” \u00a0 (Not to mention “Richard II, Act 1, sc. 1.”) \u00a0He also quoted\u00a0President Eisenhower, \u00a0who “once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas… ‘In this country, if someone dislikes you, or accuses you, he must come up in front. \u00a0He cannot hide behind the shadow.'”<\/em><\/p>\n

Note also the emphasized phrase, “created<\/strong> a constitutional right of intimidation.” \u00a0That seems especially ironic given Scalia’s insistence that judges should not “create new laws,” but must – in the case of the Supreme Court – stick to the Founder’s “original intent.” \u00a0See e.g.,\u00a0<\/em>Scalia Defends Originalism as Best Methodology for Judging Law<\/a><\/em>.<\/p>\n

Re: Ken Starr’s tenure as dean of Pepperdine. \u00a0See\u00a0Dean at Pepperdine’s school of law is named president of Baylor University<\/a>.<\/em><\/p>\n

The lower image is courtesy of\u00a0destination-yisrael.biblesearchers.com\/destination-yisrael<\/a>. \u00a0Among other things the article \u00a0noted, “According to Jewish tradition, Yithro” – Jethro – “did convert to Judaism with his whole family.” \u00a0Then too, the image seems to be from the 1956 movie\u00a0Ten Commandments<\/a><\/em>, with Charlton Heston as Moses. \u00a0(And\u00a0Eduard Franz<\/a> as Jethro<\/a>.)<\/em><\/p>\n

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Moses as the original supreme court, on advice and counsel\u00a0of \u00a0his father-in-law\u00a0Jethro… * \u00a0 * \u00a0 * \u00a0 * The U.S. Supreme Court is in the news, again… Last Saturday night I was\u00a0channel surfing\u00a0at home. \u00a0(Waiting for a ride to The Buddy Holly Story\u00a0at the\u00a0Legacy Theatre, Tyrone GA, shown at right.) \u00a0 One channel had […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5],"tags":[],"_links":{"self":[{"href":"http:\/\/georgiawasp.com\/index.php?rest_route=\/wp\/v2\/posts\/3495"}],"collection":[{"href":"http:\/\/georgiawasp.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/georgiawasp.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/georgiawasp.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/georgiawasp.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3495"}],"version-history":[{"count":87,"href":"http:\/\/georgiawasp.com\/index.php?rest_route=\/wp\/v2\/posts\/3495\/revisions"}],"predecessor-version":[{"id":9115,"href":"http:\/\/georgiawasp.com\/index.php?rest_route=\/wp\/v2\/posts\/3495\/revisions\/9115"}],"wp:attachment":[{"href":"http:\/\/georgiawasp.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3495"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/georgiawasp.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3495"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/georgiawasp.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3495"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}