Don's Tuesday Column

            THE WAY I SEE IT   by Don Polson  Red Bluff Daily News   3/01/2016

  Whose ox or judge is gored?

I explained last week why and how the judiciary, particularly the U.S. Supreme Court, has become, over several decades, a crucial tool in the partisan efforts of both liberals and conservatives to secure legislative accomplishments and cultural victories. In the last 100 years or so, judges and the judiciary have never been beyond the realm of governing and politics. Under FDR, the legislation enacted and the measures taken by the executive and regulatory branches were unprecedented for that time and, not unlike the current administration, subject to litigation and judicial restraint.

When the Supreme Court decided to rein in what was widely believed to be overreach by Roosevelt, he tried increasing the number of justices, or “court packing,” for the crass purpose of creating a majority to rubber stamp his policies. Having gone too far, Roosevelt backed off that maneuver but continued to rely on the drawn-out legal process to forge ahead in the assurance that, by the time adverse rulings were handed down, his policies would be ingrained in the targeted sectors.

Industries, forced to accede to mandates, were reluctant to shed the mandates when found unconstitutional, as they had internalized them in their practices. Collusion over prices, for instance, continued; profitability was selectively secured; competition was squelched.

In similar fashion, Obama’s Energy Department expected to force states to comply with CO2 restrictions while the Clean Air Act provisions were litigated, forcing states and industries to accept the status quo even after it was ruled illegal by the court. He was shut down before Scalia died; that demonstrates the supremacy of the judiciary over Obama’s policies.

So, beyond the reasons for such entrenched fights over judges, particularly on the Supreme Court, the whole question of boundaries for fairness in those fights is now front and center. Writers, commenters and politicians on the left assert something to the effect that the Senate’s role is to be a respectful enabler for, and approver of, President Obama’s choice of nominee. Funny how that is the opposite of what some of those same folks said when the president’s name was Bush or Reagan.

First, there are some perhaps intentionally confusing misstatements on the issue. An extreme (extremely ignorant, that is) comment was that the President “appoints Superior [sic] Court Justices, no matter what party they belong to. That is what the Constitution says. Obama was voted in by the majority and the majority wants Obama to pick the next Judge.” A columnist wistfully asked “Would it not be refreshing if (upon Obama appointing a nominee) Congress replied ‘Sure’…we will consider it…as you are rightly empowered to do so.”

Sometimes I think that if liberals didn’t have double standards, they’d have no standards at all. A cartoon on this page summed up a hypocritical, fallacious story line by the left. It inserted Donald Trump’s “delay, delay, delay…until a new President is elected” admonition into the “advise and consent” clause. The actual sentence, Article II, Section 2, second paragraph: “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court…”

That probably translates to liberals, based on past and present words and deeds, as “Democrat Presidents get their nominees without delay or obstruction—advice is not needed and consent is presumed and expected.” News media, with some exceptions, act as stenographers and cheerleaders for Obama against those conniving, obstructionist, manipulating Republicans. Or, when the president is a Republican, they provide cover for the loyal, sincere, principled opposition by Democrats who only want to protect the nation from cold-hearted fanatics being nominated by Republicans.

Normal open-minded citizens will undoubtedly see through this to realize that there are big issues at stake, as I have pointed out, and that if the Senate, or its Judiciary committee, do nothing—hold no hearings or votes—that is part (or withholding) of the “consent” of the Senate.

Republicans have every right to stonewall Obama’s court appointees in this election year. I know because the New York Times said so in a 1987 (not even an election year) editorial on why the Senate was correct to reject Robert Bork: “The President’s (Reagan’s) supporters insist vehemently that, having won the 1984 election, he has every right to try to change the Court’s direction. Yes, but the Democrats won the 1986 election, regaining control of the Senate, and they have every right to resist.”

They said, “right to resist,” Trump says “delay, delay, delay” and Hugh Hewitt has started a wildly popular twitter hashtag: #NoHearingsNoVotes. The other Republican candidates all insist the Scalia chair belongs to the next president—let Dems campaign on their vision for an anti-Scalia judge—and voters will decide.

Obama filibustered Bush nominee Samuel Alito, not because Alito was unqualified but simply to oppose a conservative philosophy. Now he wants us to ignore the fact that he will only appoint a replacement that he’s sure will join the philosophically liberal Supreme Court wing. Democrat Senator Schumer (then): “…we should not confirm any Bush nominee to the Supreme Court accept in extraordinary circumstances” (Surprise—none occurred!). Democrat Harry Reid (then): “Nowhere in that document (U.S. Constitution) does it say the Senate has a duty to give presidential nominees a vote. (It says) with the advice and consent of the Senate. That’s very different than saying that every nominee receives a vote.” I, for once, agree with Harry Reid!