Wednesday, October 28, 2020

Scruggs, Vassallo Debate: Should President Obama Nominate a New Justice?

Dickie Scruggs: President Obama is constitutionally mandated to nominate a justice to replace Antonin Scalia.

Richard "Dickie" Scruggs
Richard “Dickie” Scruggs

The Constitution is unequivocal: A President “shall nominate” a candidate to fill a vacancy on the Supreme Court. In legal parlance the word “shall” makes an act mandatory, compulsory and non-discretionary. This is so whether the vacancy occurs in the first year of a President’s term or the last.

The real issue is whether the Senate will act on an Obama nominee. There is no correspondingly clear directive to the Senate in the Constitution. Presumably, the Founding Fathers intended for the Senate to act within a reasonable time. It always has, averaging just 71 days for confirming the modern Court (including Justice Scalia). The longest period ever was 125 days for Justice Louis Brandeis, the first Jew to be placed on the Court.

There are approximately 330 days remaining in President Obama’s final term—obviously more than enough time by historical standards.

And yet, since the beginning of Obama’s Presidency, the Republican Leader in the Senate, Mitch McConnell, has pursued a strategy of spoiling his Presidency, announcing boldly that: “The single most important thing we want to achieve is for President Obama to be a one-term president.” In other words, defeating Obama took precedence over national security, recovering from the recession, balancing the budget, repairing the nation’s infrastructure, health care, social security…everything else.

I once thought that those who supported obstruction as a means of reversing an election were being short-sighted. There was bound to be payback, I reasoned, when the table was turned, resulting effectively in a government shutdown through partisan gridlock. No bills would pass, no nominees would be confirmed, and government agencies would wither on the vine as vacancies mounted through normal attrition.

Now, however, I am starting to realize that there is method to this. Those who are vested in the status quo can be certain of maintaining their advantage only if nothing is permitted to change.

So, I suggest that Leader McConnell is being consistent in his refusal to take up any nomination by President Obama. Better to go with a stalemated 4-4 ideological split on the Court than risk a 5-4 liberal advantage.

While Justice Scalia’s death has ostensibly neutralized the conservative advantage, a 4-4 split on the Court ensures that nothing can change. Recent 5-4 decisions like Citizens United–which opened the floodgates to unlimited dark money in our elections–would be preserved.

I am concerned that the strategy of obstruction as a political end, as opposed to a tactic to achieve a political end, is a dangerous development not fully anticipated by the framers of our constitution.


Steve Vassallo: Republicans should do everything possible to block Obama’s replacement for Justice Scalia.

Steve Vassallo
Steve Vassallo

Since 1900 there has been only one occasion in which a “lame duck” president attempted to fill an opening to the Supreme Court. In 1968, Lyndon B. Johnson nominated Abe Fortas to serve as Chief Justice (he was an Associate Justice) and Homer Thornberry to replace Fortas. The Republican Senate made certain neither were approved.

With the untimely death of Antonin Scalia, his replacement to the highest court has now created the number one campaign issue in the 2016 presidential election. The Supreme Court in recent years has been evenly split with Justice Scalia (who was nominated by Ronald Reagan) mostly taking the conservative position.

Should the court receive another liberal Justice, the balance would then tilt to the left. The results of this could be unthinkable. GOP supporters and candidates are expressing concerns to the American public about overturning the Second Amendment and other fears should an Obama nominee be seated.

The 54 Republican Senators break down as follows on this issue of entertaining an Obama nomination. Those who say “hell no, not under any circumstances” include 35 members of the Senate of which both Mississippi Senators are among this group. Eleven want to “wait and see” as to he will appoint whereas eight have no comment on the matter. Senate Majority Leader Mitch McConnell has clearly stated that “this vacancy should not be filled until we have a new president.”

The three Republican presidential frontrunners, Donald J. Trump as well as US Senators Cruz and Rubio, are all in agreement on this issue. None want to see an Obama nomination have a chance in a million in succeeding. Trump has consistently described Obama as the most incompetent president in American history. His followers appear to concur.

The way I view this is the Republicans could not lose the presidency under any circumstances should the Second Amendment be at risk. The Democrats will shout “gridlock”, however the American public will make the ultimate decision at the November ballot box. With three states already having presidential primaries and a caucus, the increase in GOP voters since the 2012 election coupled with the decrease in Democratic voters forecast rough sledding for the Democratic nominee. This added campaign issue of which party will ultimately name the next Supreme Court Justice is almost a certainty that we will have a Republican president come January. Americans can waver on many issues, but giving up our firearms is not one of these, especially when two thirds of adults own guns.



Dickie Scruggs is one of Oxford’s best-known former attorneys who now expresses his passion for adult education through the GED in a unique state-wide program he has developed, aptly called “Second Chance.” Scruggs is a well known Democrat and anchors the position of the Left in Point/No-Point. He can be reached at DickScruggs@gmail.com.

Steve Vassallo of Oxford is a frequent contributor to HottyToddy.com covering a wide range of subjects. An arch conservative, the popular columnist holds the political position of the Right in Point/No-Point. He can be reached at sovassallo@gmail.com.

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