The Balance of the Supreme Court

” […] and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, […]” Article 2, Section 2, Clause 2 of US Constitution

Word broke late on Friday of the death of Supreme Court justice Antonin Scalia. The death of the conservative justice during an election year is bound to have great ramifications.

Even before the Supreme Court had officially announced the passing of Justice Scalia, Senator Ted Cruz (R-TX) tweeted out that the next President gets to pick his replacement instead of President Obama.

Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.

— Ted Cruz (@tedcruz) February 13, 2016

When Republicans took control of the Senate last year, Senate Majority Leader Mitch McConnell (R-KY) stated that there would be few if any votes on any of Obama’s nominations still awaiting for the Senate’s confirmation with the exception of a Supreme Court vacancy. (The Senate did confirm a few State Department officials within the past week though.)

Now, however, Senate Majority Leader McConnell is talking differently as he states that the American people should have a voice in the next justice with the upcoming election.

The American people should have a voice in the selection of their next Supreme Court Justice. #Scalia https://t.co/QXHfOpEY6G

— Leader McConnell (@SenateMajLdr) February 14, 2016

One has to wonder if Republicans would be singing the same tune if the President was a Republican instead of a Democrat. The Court is narrowly split and a new justice appointed by President Obama could shift it in the opposite direction.

In 2005, Senator McConnell defended the absolute right of a sitting President to nominate judges, stating, “The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.  The Senate is empowered to give advice and consent.”

Keep in mind that the next President will not be sworn in until January 2017, just under a year away. The longest confirmation hearing in modern times was Justice Clarence Thomas at 100-days. This would be triple the amount of time just to wait for a nomination let alone the confirmation hearing and a vote.

President Obama is within his constitutional right to put forth a nominee, and the Senate has the duty then to hold confirmation hearings and to hold a vote. It doesn’t matter if it’s an election year or not.

In January 1801, in the wake of the 1800 election, President John Adams nominated John Marshall to be Chief Justice. Marshall was confirmed by the Senate within a few days much to the chagrin of the incoming Jeffersonian Republican majority.

In 1987, President Reagan nominated Anthony Kennedy to fill a vacancy in the Supreme Court. Kennedy was confirmed in February 1988 (an election year) by a 97-0 vote in which Democrats held the majority in the Senate.

Senator Elizabeth Warren (D-MA) called out the hypocrisy of her GOP colleagues in refusing to even consider a nominee by President Obama. She went on to state that they all took the same oath and shouldn’t abandon their duties.

I can’t find a clause in the Constitution that says “…except when there’s a year left in the term of a Democratic President.”

— Elizabeth Warren (@SenWarren) February 14, 2016

President Obama has already stated that he will be making a nomination to fill Scalia’s seat as is his right to do so and names are already circulating. It will be up to the Senate to prove that it can perform its constitutional duties or whether they are willing to hold the third branch of government hostage to politics.

There is no doubt that Justice Scalia’s death brings the issue of Supreme Court nominations into the 2016 election. And though we are reminded of this issue in the most tragic of ways, it deserves more than just a partisan soundbite. The President and the Senate have a constitutional responsibility at this point, and they need to step it up.

The Curious Case of Kim Davis

At the end of June, the Supreme Court ruled in Obergefell v. Hodges that state bans on same-sex marriage violated the 14th Amendment and were thus unconstitutional. This led to same-sex marriage being legal throughout the country.

The majority of places began to make the necessary changes within the coming weeks. There was no more uncertainty where the law stood. But in Rowan County, the elected clerk Kim Davis decided to take a stand and defy the Court’s ruling. Not only has she refused to issue marriage licenses to same-sex couples, she has refused to issue any marriage license.

Davis filed a lawsuit in federal court after Kentucky Governor Steven Beshear told clerks throughout the state that they had to comply with the ruling and issue marriage licenses to same-sex couples. The court ruled that she had to comply with the law. So she filed an appeal to the Supreme Court which also ruled this week that she had to comply with the law to which she is still refusing to do today.

Fairness Campaign Director Chris Hartman at a protest outside the Rowan County Clerk’s Office.
(c) Chris Hartman

This ordeal has opened up the old debate of religious liberty protected under the First Amendment and equal rights for all citizens. Kim Davis has been quoted saying that she was not issuing marriage licenses “under God’s authority.” As an Apostolic Christian, she says that she cannot issue marriage licenses as it goes against her religious beliefs.

Another Kentucky clerk that is standing alongside Kim Davis is Casey Davis who has stated that they haven’t tried to prevent same-sex marriage just exercise their First Amendment rights and that same-sex couples could go to a neighboring county to get their marriage licenses.

From that it would seem, we’d be going from the patchwork of states that either legalized same-sex marriages or banned them to the counties. This would seem to be even more confusing if it came to this. Sadly, what Kim Davis is failing to recognize is that the law is the law. It has been ruled upon and even affirmed now.

Kim Davis has the right to believe what she wishes. However, she is a public servant and should do her job. The key words in that sentence are “public servant.” If she is unable to perform the tasks of her job then she either needs to be fired or resign on her own. She does not have the right to decide which laws she will follow and which she will not.

I’m sure we could all get into a huge discussion about what is actually written in the Bible about same-sex marriage, women’s rights, shellfish, slavery, and many other things but that is not the point of this. Yes, we all have the right to freely believe and practice whatever religion we wish to so long as it does not affect anyone else.

When James Madison originally proposed what would eventually become our First Amendment this is what he had written regarding our Freedom of Religion:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.”

The civil rights of NONE shall be abridged on account of religious belief or worship. Same-sex marriage is a civil right. It has been ruled upon and affirmed. The Supreme Court even ruled back as far as Loving v. Virginia (1967) that marriage was a civil right and therefore was protected under the Constitution.

Let’s put this into a difference scenario. How would Ms. Davis feel if someone told her that because she is a woman that she cannot voice her own opinion and was subservient to her husband? The Bible does state this in Ephesians 5:21-30, “Wives, be subject to your husbands as you are to the Lord. For the husband is the head of the wife just as Christ is the head of the church, the body of which he is the Savior. Just as the church is subject to Christ, so also wives ought to be, in everything, to their husbands.”

I’m sure Ms. Davis would be quite vocal in her objection if someone were to enforce that upon her. Just like with the law, she doesn’t get to pick which parts of her religion she is going to practice and which she will not.

Despite what her religious beliefs or objections may be, the US Constitution is still the supreme law of this country (Article 6, Clause 2) and not the Bible. One may use the Bible for their own personal well-being and for their spirituality but it ends there. If Ms. Davis cannot separate these two things then she has no business being a public servant and should probably find a job at her church.

Of High Crimes and Misdemeanors: An Act of Treason?

There’s nothing like a slight treasonous scandal to pull a political writer out of a little sabbatical. When hearing of this, I didn’t think it was something that I could sit on the sidelines for. So here I am immersing myself in a political debate that should have bigger ramifications than it probably will.

Treason is defined in the dictionary as:

1. the offense of acting to overthrow one’s government or to harm or kill its sovereign.
2. a violation of allegiance to one’s sovereign or to one’s state.
3. the betrayal of a trust or confidence; breach of faith; treachery.

It is the only crime that is specifically mentioned in the US Constitution. (Article 3, Section 3)

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Keep your mind on what you just read as there is a possibility that you will be contemplating them as we go through this whole ordeal.

The United States has been negotiating for a nuclear agreement with Iran since 2006 along with 5 other countries which is known as the P5+1 group. The five countries are the US, Great Britain, France, Russia, and China, and the +1 being Germany. The goal is to keep Iran from having nuclear missiles. In 2013, and interim agreement was reached with a comprehensive agreement due later this month.

With the deadline approaching some Senators have expressed concern over what a final comprehensive deal might look like and have a desire for the final deal to be debated on voted on in the Senate as a treaty would be under Article 2, Section 2, Clause 2 of the US Constitution. However, freshman Senator Tom Cotton (R-Ark) has gone even a step further by submitting a letter with 46 other signatures of Republican Senators to the leader of Iran expressing that any nuclear treaty with the country would not be upheld once President Obama leaves office.

Now let me bring in the Logan Act which was passed by Congress in 1799. It prohibits unauthorized citizens from negotiating with foreign governments. Violation of this act is a felony.

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

Under Article 2, Section 2, Clause 2 of the US Constitution, “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…” The President has the power to appoint ambassadors and to conduct negotiations with foreign governments. The Senate does not come in to the equation until the vote for approval is needed. By this, Senator Cotton does not have the authority to approach Iran on any subject that is concurrent with the ongoing negotiations. To have done so is a violation of the Logan Act.

According to a recent article on Politico, this is not the first time that one party has accused the other of violating the Logan Act. Republicans screamed it in 1987 after Congress cut off aid to Nicaragua’s Contra rebels. Democrats ran (and ultimately won both chambers of Congress) in 2006 on forcing then-President George W. Bush to come up with a timetable for the wars in Iraq and Afghanistan.  Speaker Pelosi would also go against the wishes of the White House in 2007 and travel to Damascus to meet with Syrian leader Bashar al-Assad.

So where does all of this then fall in? If it has been done before then should we just brush it aside again? In this case, I would suggest no. It does violate international law. It does undermine the full faith and credit of the US, which is already shaky in the world as it is especially in regards to Iran where neither side completely trusts the other. Senator Cotton had no authority to write and send that letter which was in an effort to derail negotiations with a foreign government before a final deal is reached. It was out of his jurisdiction as a US Senator.

Remember those definitions of treason at the beginning? If this isn’t it then it comes dangerously close to that line. The overall goal of the letter was to do harm and to instill a sense of a betrayal of trust and confidence against our country.

Reforming the Electoral College

The way we elect the President and Vice-President in the US is quite unique compared to the way we elect every other elected office.  We don’t elect them directly. Instead, we vote for Electors who then cast votes for President and Vice-President.

Electors from each state are supposed to cast their votes for whichever candidate won that state’s popular vote… “Winner Take All.”  Every once in awhile there is a rogue Elector that casts a different vote.  It doesn’t matter how many votes a candidate won the popular vote of a state, that candidate will receive all the Electoral Votes, except in the states of Nebraska and Maine which reward their votes based on whichever candidate won the congressional district.  The extra two votes are then given to the winner of the state’s popular vote.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Article 2, Section 1, Clause 2 of the US Constitution

Only four times in American history has the Electoral Vote and the Popular Vote been different… 1824, 1876, 1888, and 2000.  There have been numerous calls for Electoral reform since the 2000 election but nothing has gained a lot of attraction.  To completely abolish the Electoral College, there would have to be a constitutional amendment.  But to make changes to how those electors are awarded (without abolishing the Electoral College) could be easily done without changing the Constitution as each state has the right to determine how it rewards the Electors.

After the 2008 election, Republican legislatures in several states which did include several swing states like Virginia tried to change how their state’s would cast their ballots.  Their plan was similar to Nebraska and Maine but with a little tweak.  The Electors would be determined by whoever won the congressional districts.  The difference would lie in how the other two Electors (the ones that represent a state’s Senators) would be chose by whichever candidate won the most districts instead of the candidate that won the popular vote of the state.  This did not sit well with Democrats and nothing came from these plans in any of the states.

There is a movement that is gaining traction though.  It’s called the National Popular Vote (NPV).  This would require a state’s Electors to vote for whichever candidate won the national popular vote in an election.  This way the winner of the popular vote would not lose to the winner of the Electoral College as happened last in 2000.

As of now, 11-states plus DC have enacted NPV legislation. (The Hill) It accounts for 165 Electoral Votes in total so far and needs only 270 in order for it to become active in the states that have passed the legislation.  Of the states that have enacted such legislation, most of liberal-leaning such as Illinois, California, Massachusetts, Maryland, etc.

2012 Election Results by Congressional Districts

But as this new debate continues in other states, there is the question as to whether this is any better than the current system.  Each state is separate from the others.  The Founding Fathers wanted there to be state autonomy and unification under the federal government.  Each state gets to choose how it decides its Electors in the broader election.  But is it fair to have a state’s Electors cast their votes for a candidate that the people of that state didn’t choose simply because more voters throughout the rest of the country voted for the other candidate?

As of April 15, 2014, Oklahoma was one of a half-dozen states considering NPV legislation.  Can anyone imagine that state casting is Electoral Votes for a Democrat despite the people of the state voting for the Republican candidate in large numbers?  Oklahoma is one of the “reddest” states out there.

Yes, NPV is an effort to make sure that every vote counts and not just those in swing states as our current system does.  But it almost sounds as though the NPV would overrule a state who’s population disagreed with the popular vote.  And without most states (more than 270 Electoral Votes) being a part of this plan, it would focus all of the attention on to the states that do have such a law enacted should it become so.

According to a 2007 Washington Post Poll, 78% of Democrats support direct popular vote in future presidential elections.  60% of Republicans and 73% of Independents also support such a move.  But would a direct popular vote shift focus to the major cities and away from the rural areas since that is where the bulk of the population lives?

Maybe states should consider what Nebraska and Maine have.  Rewarding Electors by the popular vote of each congressional district and giving the candidate that wins the popular vote of the state the extra 2 votes.  Though it has only happened once in the two states that currently use this method (Nebraska-02 in 2008), most states have districts that swing in the opposite direction of a state’s typical Electoral Vote.  There are Republican districts in California and Democratic districts in Texas.  Suddenly, both parties would focus on those particular districts and any swing districts.

There is no definite answer to the solution to the way we elect our President and Vice-President.  There are pros and cons for any option.  We just need to make it as fair and balanced as possible so that the majority of Americans feel included in the political process and there is not a focus on just a handful of states.