“Don’t Trash The Supreme Court!”—Al Gore’s directive to his staff during the Florida recount in the 2000 Election.
The cracks in bipartisanism within American politics rivaled the San Andreas fault after the controversial rulings in the Bush v. Gore court case that settled the 2000 Election. The Supreme Court warfare over the ideology of the Judicial Branch was exposed, but the battles waged long before 2000 (or 2016).
Let’s go back in time for a little history lesson.
As far back as the 1800 Election, Federalist incumbent John Adams won more popular votes than his opponent, Vice President Thomas Jefferson, the Democrat-Republican nominee. However Jefferson earned more electoral votes, and thus became our 3rd president. Does that sound familiar?
In his final days as president, Adams nominated 42 Federalists to key judicial position, known as the “Midnight Judges.” The Senate confirmed all of the nominations, letters were written, signed, and the Seal of the US Senate was stamped on those appointments. The next day Jefferson was sworn in as President.
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When Jefferson learned of the judicial appointments, and that not all of the letters had been delivered; he ordered James Madison (who later became president himself) to stop the letters that had not been delivered, so he could make his own appointments.
One of those who did not get their letter was lawyer William Marbury, who sued for his appointment. The case came before Chief Justice John Marshall — ironically, a Federalist like Adams — the man actually responsible for getting the appointment letters sent out at the time.
Marshall ruled that the Constitution, not Congress, gives the Supreme Court its power. The Judiciary Act of 1789 was ruled unconstitutional and thus Marbury did not get his appointment. The now-infamous Marbury v. Madison case established the power of ‘Judicial Review’ over the other two branches of government.
There would be other examples of attempts by the government to manipulate the federal courts throughout history:
President Jefferson actually did not have the constitutional authority to make the Louisiana Purchase. 8th President Martin Van Buren tried to put political pressure on the Courts during the Amistad case.
Our nations 15th President, James Buchanan, did little to counter or oppose important unconstitutional Congressional legislation, such as The Fugitive Slave Act or the Dred Scott ruling, out of fear of starting a civil war. The war happened anyway.
America’s 19th President Rutherford B. Hayes made several backroom deals, including the removal of Federal troops from the South. His action ended Reconstruction and allowed the rise of the Jim Crow Laws.
34th President Dwight D. Eisenhower appointed Judge Earl Warren as Chief Justice of the US Supreme Court, just in time for the Brown v. Board of Education case to be heard. The ruling opened the door for Eisenhower to begin the desegregation of the federal government and the US Military.
36th President Lyndon Johnson appointed Thurgood Marshall to the US Supreme Court, which was seen as more as another one of LBJ’s Machiavellian political moves.
And then things really got ‘Nasty’!
Then-U. S. Senator Joe Biden (yes…THAT Joe Biden), during his time as Chair of the Senate Judiciary Committee, came up with a strategy called the “Biden Report.” It became the Left’s blueprint in opposing and taking down Republican Judicial Nominees in the years to come.
40th President Ronald Reagan appointed Judge Robert Bork to the US Supreme Court. The late Senator Ted Kennedy took to the Senate floor to issue a clarion call to his fellow Democrats to block Bork at all costs:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.
Mary-Jo Kopechne was unavailable for a response.
The Liberal Left organized to successfully stop Bork’s appointment to the Court. This political tactic would later become known as getting “borked.” And then came one of the great media circuses of the 1990s, one that not even Shonda Rimes could have come up with at the time:
41st President George HW Bush nominated Clarence Thomas to replace the late Thurgood Marshall. Then Anita Hill came forward with accusations of sexual harassment, and for several months the country was entertained by the national media with stories of “Coke cans and Long Dong Silver.” Justice Thomas was confirmed by a narrow margin, but the damage had already been done to his character.
That didn’t stop then-Senator Biden from making an outrageous decree on the Senate that unbeknownst to him, would come back to bite him (and President Obama):
So…what is the point of this history lesson?
It’s to understand recent Supreme Court warfare. When Justice Scalia died suddenly in February, President Obama was gifted the opportunity to fill his third seat on the Court. He had previously replaced David Souter with Sonia Sotomayor and John Paul Stevens with Elena Kagan. Neither of those appointments shifted the Court’s ideological balance, as in each case Obama replaced, broadly speaking, a judicial liberal with another liberal. Replacing Scalia, on the other hand, was going to be a monumental shift in the Court. Scalia was one of the most conservative justices in the history of the Supreme Court. An Obama replacement would give the Court its fifth liberal and shift it to the left in historically significant ways. President Obama and Democrats were salivating at the opportunity.
Since Justice Scalia’s death, his seat has remained vacant. President Obama has had to go on defense by performing a political ‘Jedi mind-trick’ on the world:
“We know senators say stuff all the time,” Obama, himself a former Senator from Illinois, said Wednesday in comments from the Oval Office.
Though Obama didn’t mention his vice president by name, it was a clear reference to then–Sen. Biden’s much-discussed argument against filling a vacancy on the high court late in a president’s final term. Republicans are using Biden’s June 1992 Senate floor speech as they vow not to hold hearings on, or even meet with, Obama’s nominee to replace the late Justice Antonin Scalia.
Referring to past statements from Biden, as well as Sen. Chuck Schumer, Obama said their words have “no application to the actual situation that we have right now,” since there was no nomination at stake at the time. Biden, in a statement on Monday, said that his 1992 speech was about a hypothetical nominee and that it isn’t evidence that he opposes filling a Supreme Court vacancy in an election year.
Despite President Obama appointing Federal Judge Merrick Garland to the Supreme Court, Congressional Republicans finally turned the tables on the Democrats and gave them a taste of their own medicine, and they cannot handle it! Rolling Stone is going as far as rewriting history:
This all started almost immediately after Scalia’s death, with the Republicans claiming a new theory that a president should not be able to appoint a justice during an election year; rather, the people should be allowed to speak and decide on the direction of the Court, they said.
The Republicans, though, were having none of it. Through unflinching and unified obstructionism, combined with the recent election of Donald Trump, they succeeded in stealing the seat right out from under President Obama’s nose. It was a staggering case of grand theft judiciary, that needed some strategic Supreme Court warfare.
The president couldn’t have been more wrong. Without any interest group to cheerlead his cause, Garland was quickly forgotten and faded into the distant background of American politics. As a result, there was no movement whatsoever. Thus Garland’s nomination has lingered with no action longer than any other nominee in history.
This was why a history review was needed…to be armed with knowledge with the facts of the truth!
The Democrats had a devastating loss in this past election. They are the minority party in both houses of Congress and have just lost the White House.
The Clintons have been permanently banished from DC, most likely. And if that’s not enough, the DNC Chair was forced to resign during their Convention due to scandal only to have her replacement fall under similar scrutiny.
The Democrat Leader in the Senate has been replaced, and the current Leader in the House is under attack by her own party. And the Democrats were denied the rare opportunity to swing the ideological POV of the Supreme Court.
A wounded animal is also the most dangerous.
The Liberal Left is wounded desperately needs a victory. Every one of President-Elect Trump’s Cabinet nominees and court appointments (Supreme Court warfare or otherwise) will most likely be facing some of the most callous scrutiny to date.
So get ready, the fireworks have yet to begin!