The following comments made by Jaime Sneider in the Weekly Standard define the whole argument about the Senate not confirming President Obama’s Supreme Court nomination.

“Since Justice Antonin Scalia’s death in February, the Obama administration and its allies have insisted that a failure to confirm D.C. circuit judge Merrick Garland to replace him would result in chaos.  In the absence of an odd number of justices, the story went, the Supreme Court wouldn’t be able to exercise oversight over the decisions of state and lower federal courts, which would end up promulgating inconsistent interpretations of federal law.

“The reality has not matched the apocalyptic rhetoric.  The justices tied in a whopping four cases in the Supreme Court term that just concluded, and they agreed unanimously in 39 of 81 decisions, nearly 20 percent more than in the preceding term.

“If you assumed the Obama administration would welcome this consensus building and dial back its bombast, you would be mistaken.  One of the four ties occurred in the immigration case brought by 26 states challenging a pair of executive actions President Obama took in 2014 to prevent nearly 5 million illegal immigrants from being deported.  The tie left in place a court of appeals decision that held the president had exceeded his constitutional authority.

“Following the Court’s decision, President Obama declared, ‘Republicans in Congress currently are willfully preventing the Supreme Court from being fully staffed and functioning as our founders intended.’  No doubt the speechwriter who wrote this line—throwing the purported intentions of the Framers in the face of Republicans—patted himself on the back.

“Certain legal academics joined the hysteria.  ‘The Supreme Court sits to provide uniformity of federal law and the supremacy of federal law,’ said Susan Low Bloch, a professor at Georgetown University Law Center.  ‘When a case comes to it, and it decides it—or doesn’t decide it—4-4, then it hasn’t performed its function.’

“Never mind that even if the Senate had immediately taken up the president’s nomination of March 16, there was no chance the vacancy would have been filled by the April 18 argument in the immigration case.  Never mind that ties and vacancies are nothing new for the Supreme Court, and that President Obama and legal academics did not perceive them to be a threat to constitutional principles when Justice Elena Kagan recused herself from 28 cases, one-third of the total, in her first term.  And never mind that Congress is free to alter the number of justices on the Supreme Court, that there is nothing special about having an odd number of justices, and that the Supreme Court is not under any obligation to resolve disagreements among the courts over federal law.  Obama has weighed in, and he and his allies have intoned that the Senate’s failure to promptly confirm a ninth justice to the Court is not just dirty politics, but contrary to an original understanding of the Supreme Court’s role.

“Justice Ruth Bader Ginsburg told the New York Times in her recent interview that in the best case scenario, the Senate would confirm Judge Garland during the lame-duck session after November’s election, but he would still miss most of the term’s arguments.  While President Obama may rue this result, there is no need to pretend the Senate’s failure to act somehow abrogates the historic province of the Court.”

According to Sneider, once again, the hue and cry of partisan politics tends to obscure the reality and practical consequences of the issues.

Did the Senate have the right to do what they did?  Absolutely!  Was our constitutional law professor in the White House right about the consequences of their action?  Apparently not!

I’m not sure where our president got his credentials to teach constitutional law.

On at least two or three occasions, more than any other president, he has attempted to regulate what Congress would not legislate.  He has also criticized the Supreme Court for two or three of their decisions.  I can’t remember any other president doing that.

One by one, the eight or nine black robes are saying, “You should know better.  You are overstepping your constitutional authority.”



Filed under Blog


  1. Paul

    I do not know the author of the piece, but I believe the Evening Standard is a newspaper in England. If this is the case, I find it annoying that he has the gall to discuss our government like this. Do we find fault with the Queen or the PM and publish it in the NY Times? Not that I know of. Of course I may be wrong, and I’d like you to correct me if I am.

  2. Sorry Pzul, you have the wrong Standard. This is the Weekly Standard published here in the US. Bill Kristol is thePublisher

  3. Gary W.

    Rather than adding a justice, let’s just wait until another one leaves and then we’ll again be at an odd number: 7. This will bring back the ability to have 4 – 3 decisions while at the same time saving the taxpayer over 20% of the cost of justice and staff’s salaries and benefits.

  4. Creative suggestion Gary, but I believe you would only save about 10%

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