What The Hell Is Going On With The U.S. Supreme Court?

Given the current volume of pant-shitting over this coming Tuesday, one could be forgiven for forgetting that there is currently a whole other branch of U.S. government whose fate is currently as up in the air as this election.

That’s right, I’m talking about the current 4-4 deadlock in the Supreme Court that Americans have been treated to since February, following the death of Justice Antonin Scalia.

You would hope that such a thing as Supreme Court appointments would be pretty cut and dry- we’re talking about the highest court in the land here after all. However, the issue was an instant non-starter amongst Republicans, who promptly pounced on a possible Obama appointment with a resounding chorus of “Don’t-You-Fucking-Dare-s.”

So much for that being cleared up quickly.

Of course, Republicans claimed that their no-nomination position was sound- both Marco Rubio and Ted Cruz quickly came out saying the decision was based on “80 years of precedent” of presidents abstaining from nominating anyone to to the Supreme Court in an election year. Unfortunately for Rubio and Cruz, the chances of that claim being factual are about the same as their current chances of winning the presidential election.

Numerous justices have been nominated by presidents, and confirmed by Senates, in election years. Of course no one took this as a reason to drop the issue.

No, now the hot topic is protecting the nonpolitical image and integrity of the Supreme Court.

To this end, Republicans employed a “you did it first” strategy, claiming that Democrats had previously argued a full election-year blockade during the Bush administration. This appeared true at first glance, but turned out to be a misrepresented comment- which was also used out of context for good measure.

In 2007, Senator Charles Schumer said:

“I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.”

Here’s the whole quote though:

“We cannot afford to see Justice Stevens replaced by another Roberts or Justice Ginsburg replaced by another Alito. Given the track of this President and the experience of obfuscation at hearings, with respect to the Supreme Court at least, I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”

In other words, Schumer was claiming that Bush’s two nominees had presented themselves as moderates, who would respect precedent, when in reality they went on to display judicial activist tendencies. Rather than arguing a blanket ban on Bush appointments, Schumer was concerned about the integrity of the Court, suggesting that evidence of a Justice’s moderate judicial record- not just take their word for it.

Keen observers may have realized at this point that Republicans were attempting to slam Democrats for arguing the SAME FUCKING POINT that THEY are arguing now. Extra points for you if you noticed. But I digress.

The idea that any of this is non-partisan is pretty laughable. Isn’t it funny just how quickly one political party seems to be able to detect bias in a nominee when the nomination isn’t coming from their party? I won’t insult anyone’s intelligence by suggesting this is some sort of coincidence.

That leaves the very real issue of what, if anything, is going to happen with Scalia’s vacant seat on the Supreme Court. I think we can safely say by now the honor of appointing a new Justice will not go to Obama. But will it even go to Clinton if she wins the presidency? That will likely come down to the party mix within Congress and the Senate.

Perhaps more disturbing is the steady stream of deadlocked cases that may build up in the pipeline of the Supreme Court in the meantime- and the fact that the fastest way to break that stalemate might be the death of another Justice. That’s pretty fucked up.

Perhaps this is a sign that the Supreme Court as an institution may be phasing itself out. Given that Americans seems to be sprinting ever further away from one another on the ideological front, it is unclear how matters of national importance of the magnitude that regularly appear in front of the Court will be reconciled.

But you know… no rush or anything.


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