Warm Southern Breeze

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“My most fervent wish is that I will not be replaced until a new president is installed.” – Ruth Bader Ginsburg, SCOTUS Justice

Posted by Warm Southern Breeze on Friday, September 18, 2020

Supreme Court Justice Ruth Bader Ginsburg (1933-2020), aka “The Notorious R.B.G.,” has died.


May she rest in peace, and her memory be blessed.

Supreme Court Justice Ruth Bader Ginsburg (1933-2020)

Now, on to the matter at hand.

It’s time to study history once again.

The so-called “McConnell Rule,” which was actually no rule at all, but a political ploy by the Republican Senate Majority Leader from Kentucky, should be considered.

After all, turn about it fair play, and paybacks are hell.

But, before we continue in detail, NPR, which first reported the story of Justice Ginsburg’s death, wrote this:

“Just days before her death,
as her strength waned,
Ginsburg dictated this statement to her granddaughter Clara Spera:

“My most fervent wish is that I will not be replaced until a new president is installed.”

Justice Ginsburg was referring to comments that McConnell made following the unexpected death of SCOTUS Justice Antonin Scalia, while on a hunting trip in Texas on February 13, 2016.

And I mean to refer specifically to those comments.

Scalia’s body wasn’t even proverbially cold yet, and preparations for disposition of his mortal remains, and burial hadn’t even begun to be made, and the noxious Senator from Kentucky was already shooting off his mouth.

“The American people should have a voice in the selection of their next Supreme Court Justice.
Therefore, this vacancy should not be filled until we have a new president.”

McConnell throws down the gauntlet: No Scalia replacement under Obama
The Senate majority leader’s challenge to the president’s nominating authority appears to be unprecedented.
02/13/2016 06:34 PM EST
Updated 02/13/2016 09:56 PM EST

Senate Majority Leader Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election — an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits.
The swiftness of McConnell’s statement — coming about an hour after Scalia’s death in Texas had been confirmed —stunned White House officials who had expected the Kentucky Republican to block their nominee with every tool at his disposal, but didn’t imagine the combative GOP leader would issue an instant, categorical rejection of anyone Obama chose to nominate.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said, at a time when other elected officials, from Sen. Bernie Sanders to future Senate Democratic Leader Charles Schumer, were releasing statements offering condolences to the justice’s family, which includes 26 grandchildren.
“It was a real shocker,” said a senior White House official, speaking to POLITICO shortly before Obama, on a trip to California, announced his intention to send the Senate a nominee, citing Scalia’s own wishes for him to do so.
Many Republicans in Congress and in the 2016 presidential field unified behind McConnell, arguing that the timing of Scalia’s death — it would be the first confirmation vote since Anthony Kennedy to be held this close to an election — made it necessary to leave the appointment to the next elected president. Despite McConnell’s claim, no Senate leader has ever asserted a right — and there is no precedent for a sitting president to hand over his power of high-court appointment at the request of any member of the legislative branch. —MORE

As if a crass public announcement not even an hour after Scalia’s death was public weren’t enough, what came next was just as stunning, if not more so.

On February 23, a mere 10 days following Justice Scalia’s death, a total of 11 GOP Senators, all members of the Judiciary Committee – chaired by Charles “Chuck” Grassley (IA), Orrin Hatch (UT), Jefferson Beauregard Sessions (AL), Lindsey Graham (SC), John Cornyn (TX), Michael S. Lee (UT), Ted Cruz (TX), Jeff Flake (AZ), David Vitter (LA), David A. Perdue (GA), and Thom Tillis (NC) – wrote a letter to the Kentuckian stating in part that “this committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”
Senate Judiciary Committee SCOTUS nominee intent Letter 2-23-2016

The public announcement of their deliberately planned dereliction of duty couldn’t have been more stunning, and was historically unprecedented. Adding to the tragic irony of the matter was the fact that with the exception of Chairman Senator Grassley of Iowa, Ranking Member Senator Orrin Hatch, and Mike Lee of Utah, and Jeff Flake of Arizona, the remaining 7 Senators were from the historically Southern slave-holding states – and the president, Barack Obama, was a Black man, while they were all White men.


Much has been written, and more will undoubtedly be written, about the goings-on leading up to the 2016 General Election, which includes the Supreme Court vacancy create by the unexpected death of Antonin Scalia.

Now, with the somewhat-anticipated death of Justice Ruth Bader Ginsburg, we are once again, covering that same territory.

It’s almost a 2016 redux.

Only this one is less than 90 days away from the General Election, while the last one was 9 months away.

And, once again, we have been presented with two very undesirable candidates by both major political parties.

It almost begs the question – “What are we doing wrong?”

For some, that’s a rhetorical question, while for others, it’s a deeply philosophical question attended with deep-seated frustrations, even anger, while for some, it’s given rise to a pathological ambivalence. While those with such passive-aggressive tendencies may be in the minority, another minority has risen which takes the opposite approach, and have become openly aggressive, even to the point of publicly brandishing weapons, including assault rifles in state capitol buildings (such as in Wisconsin), and other public spaces, as well as during protests, some of which have become deadly.

Amidst the cacophony, one wonders… where’s the majority?

The minorities are obviously vocal, and that’s a good thing, per se, insofar as our democratic form of government has historically struggled with minority rights, and continues doing so to this day, and our Constitutional form of government guarantees equal rights to ALL, without regard for any other factor.

Sometimes, it can seem as if we’re beating the proverbial dead horse, while at other times, we may be champing at the bit, like an eager racehorse. And yet, we all hope – regardless of our political stripe – that during the race, the horse doesn’t falter, or worse yet, sustain a life-threatening injury.

Dr. Adam L. Silverman, PhD is a Social Science Advisor with the U.S. Army’s Human Terrain System who was previously deployed in Iraq from April through October 2008 as the Field Social Scientist and Socio-Cultural Advisor for the 2nd Brigade Combat Team/1st Armored Division assigned to Human Terrain Team Iraq 6 (HTT IZ6), and is also a consulting national security subject matter expert specializing in low intensity warfare (asymmetric, irregular, and unconventional warfare, revolution, insurgency, terrorism), civil affairs, psychological operations, and cultural considerations for strategy and policy.

In his work, he routinely provides operational support to a number of U.S. Army, DOD, and other U.S. Government entities.

Dr. Silverman’s educational achievements and background include having earned a Doctorate in Political Science and Criminology from the University of Florida, as well as Masters’ degrees in Comparative Religion and International Security.

His full professional biography is available here:

The views expressed in the paper linked herein, and on the Balloon Juice site are his alone and do not necessarily reflect those of the US Army’s Human Terrain System, the US Army’s Training and Doctrine Command, the 2BCT/1AD, and/or the US Army. He has been writing for Balloon Juice, a political blog site, since 2015.

Click to access McConnell_Rule_Pattern_Analysis.pdf

In 2016, following Justice Antonin Scalia’s death, Republican Senate Majority Leader Mitch McConnell of Kentucky refused to consider Merrick Garland, President Obama’s SCOTUS nominee, for very nearly a year. Judge Garland is a widely respected jurist on the United States Court of Appeals for the District of Columbia Circuit, where he has served since 1997.

Considered by many as a centrist liberal, Judge Garland has been praised by Republicans as being the type of nominee they would like to see from a Democratic President.

Senate Majority Leader Mitch McConnell of Kentucky, often monikered as “Moscow Mitch” – an earned political nickname he utterly loathes, though he has proudly called himself the “Grim Reaper” of the Senate since a campaign trip to Owensboro, KY in April 2019 for killing well over 400 pieces of legislation from the House – justified his action by claiming that Presidential voters should decide what kind of SCOTUS justice they wanted. The Constitution does NOT in any way, shape, or form, hint, suggest, or intimate that either the Senate or the President should engage in such behavior, or activity.

However, now that the scenario is different, Moscow Mitch is singing a different tune, presumably a Russian one. With about 44 days remaining until the November General Election on Tuesday the 3rd, there’s very little likelihood that the Senate would have enough time to consider any nominee put forth by the President. And this year Moscow Mitch is campaigning for his political future against Democratic challenger Amy McGrath, a retired US Marine Corps Lieutenant Colonel fighter pilot who has made it a campaign point to consistently point out not only McConnell’s inconsistencies, but how his political stances have actually harmed Kentuckians in very real ways.

And true to his hypocritical form, Moscow Mitch has stated that any nominee put forth by the President as he marches toward lame duckdom, will be considered – even if Joe Biden wins the election, and get a vote in the Senate. That means committee hearings and the whole 9 yards.

Moscow Mitch justified his warped and demented position by issuing a Senatorial fatwah which read in part that,

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”

And true to form, he gave no indication nor hint of any time frame for any actions as required by the Constitution.

Previously, Moscow Mitch’s actions played well with the GOP, exciting the Trump voting contingency. And, following the Liar in Chief’s election, Moscow Mitch proceeded to strip away practically every procedural rule in the Senate which allowed the minority party to put a check and balance upon controversial nominees.

In the days ahead, there will be political wrangling galore, lies, lies, and more lies.

Because, you know… The People don’t matter.

It’s all about the GOP, and Moscow Mitch.

They lost the House earlier.

Now, the GOP is on target to lose the Senate, and the White House.

The ‘McConnell Rule’ is law, and Senate Democrats should sue to enforce it
By Ken Levy, opinion contributor — 07/08/18 10:00 AM EDT

This week, President Trump will announce his nominee to replace Justice Anthony Kennedy on the United States Supreme Court. Senate Majority Leader Mitch McConnell (R-Ky.) has promised to schedule the nominee’s confirmation hearings for this fall, before the midterm elections.

If and when McConnell carries through on this promise, Senate Democrats should immediately file a federal lawsuit against him for violating the so-called McConnell Rule. (According to this rule, as McConnell himself stated on Feb. 13, 2016, “The American people should have a voice in the selection of their next Supreme Court Justice.”) The issue — whether the McConnell Rule is now binding precedent — would not be political (and therefore “nonjusticiable”) but rather fundamentally legal (and therefore “justiciable”).

The minority party needs to have some remedy, some legal recourse, when the majority leader is completely immune to considerations of fairness and consistency in his exercise of the Senate’s substantial constitutional powers. Imagine, for example, that McConnell suddenly stipulated that only 40 instead of 51 votes were necessary to confirm a Supreme Court nominee. Clearly, the validity of this rule change would be a constitutional question, rather than a political question, because it implicates a fundamental democratic principle: majority rule.

McConnell’s imminent abandonment of the McConnell Rule implicates an equally fundamental democratic principle: due process for 49 percent of the Senate, which itself represents tens of millions of American citizens. Just as the judiciary would have the authority to intervene if McConnell changed the vote threshold from 51 to 40 (or, for that matter, if he refused to step aside as majority leader should the Democrats regain control of the Senate in November), so, too, the judiciary has the authority to intervene if McConnell violates his McConnell Rule.

Assuming that a court — preferably the Supreme Court — agrees with my analysis, McConnell (the defendant) would then have to argue either that the McConnell Rule is not law or that it is law but, as he claimed on June 28, applies only to “constitutionally lame-duck” presidents. Either way, however, he would lose.

Whether McConnell likes it or not, the McConnell Rule is law. When McConnell declared in 2016 that Supreme Court nominees are not allowed hearings in an election year, that decree carried legal force — the same legal force as former Senate Majority Leader Harry Reid’s (D-Nev.) reduction of the threshold to defeat filibusters for executive appointments and most judicial nominations from 60 to 51 senators.

As every lawyer knows, not all laws are statutes. Many laws come in different forms: court decisions, agency rules, general principles, customary practices and sometimes even widely accepted opinions by legal experts. Like these non-statutory propositions, parliamentary rules announced by Senate majority leaders constitute laws as well. As a result, they are binding on future legislators unless and until they are explicitly overturned.

Importantly, if McConnell still were to maintain that the McConnell Rule is not law, then the so-called Biden Rule was not law either. But if the Biden Rule was not law, then McConnell’s claim on March 16, 2016, to be bound by it — “The Senate will continue to observe the Biden Rule so that the American people have a voice in this momentous decision” — was a lie so monumental that the entire process by which Justice Neil Gorsuch ascended to the high court would have to be deemed constitutionally invalid and, therefore, subject to retraction. This is obviously too great a cost for McConnell to risk.

McConnell’s only real option, then, is to concede that the McConnell Rule is law and then argue, as he did on June 28, that it applies only to “constitutionally lame-duck” presidents. But there are three problems with this argument.

First, once again, McConnell in 2016 tried justifying the McConnell Rule by arguing that it really reduced to the Biden Rule. When Biden announced the supposed Biden Rule (on June 25, 1992), however, President George H.W. Bush was not a lame duck but, rather, a first-term president running for reelection. The McConnell Rule, then, must apply in the context of a first-term president as well.

Second, President Obama was not a lame duck when McConnell announced the McConnell Rule in mid-February 2016. On the contrary, he had 11 months remaining in his term, which is nine more than what is normally considered to be a lame-duck period.

Third, even if we concede that 11 months left in a presidency somehow constitutes a lame-duck period, then four months left for the current Senate certainly constitutes a lame-duck period. And it would be entirely arbitrary and unjustifiable to apply the McConnell Rule only to lame-duck presidents and not to lame-duck Senates.

Like the rest of the judiciary, the Supreme Court is supposed to be above politics, a nonpartisan check on the other two branches. So when McConnell officially schedules confirmation hearings for Trump’s nominee, Senate Democrats need to do more than complain. They need to take him to court. And the court needs to tell McConnell, at long last, that his power extends only to facilitating the Senate’s advice and consent role, not to forcibly converting the judiciary into a mere extension of the Republican Party.

Ken Levy is the Holt B. Harrison Professor of Law at Louisiana State University’s Paul M. Hebert Law Center. Follow him on Twitter @tardigrade18.

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