Supreme Court Confirmations – By the Numbers!

In a topsy-turvy two weeks of high political drama, the US Senate is on the brink of voting on the appointment of Brett Kavanaugh to the high court. If he does survive the FBI background check currently underway, and he is confirmed, it will be by the slimmest of margins. Perhaps even one vote. If he isn’t confirmed, he will be the first judge not confirmed by a floor vote since Robert Bork in the 1980s.

How does Kavanaugh’s possible confirmation stake up against those currently sitting on the bench. Let’s take a look at the intriguing numbers.

Of the previous nine Supreme Court justices confirmed by the Senate spanning three decades and five presidents, five have been nominated by Republican presidents and four by Democratic presidents. Two additional nominations during that time span were never voted upon. Harriet Miers, a George W. Bush nominee, withdrew from the process. Merrick Garland appointed by President Obama in 2016 never had hearings or a vote. With these two out of the picture, there are some voting patterns which are interesting to look at.

Let’s start with the four justices appointed by Democratic presidents: Ginsburg, Breyer, Sotomayor, Kagan.  Their combined confirmation vote tallies are 314 ‘yes’ votes and 80 ‘no’ votes for an overall approval rate of 80%. This clearly shows some broad non-partisan support from the Republic party towards Democratic nominees.

What about Republican nominees? The five appointed by Republican presidents were: Souter, Thomas, Roberts, Alito, & Gorsuch. Their combined confirmation vote tallies are 332 ‘yes’ votes and 166 ‘no’ votes for an overall approval rate of only 67%. However, if Souter, the only one of our list no longer on the Supreme Court, is dropped off this list, the numbers change to 242 ‘yes’ votes and ‘157’ which is only a 60% affirmative rate. Souter also is a bit of an anomaly because, though appointed by a Republican, he was widely viewed as a staunch liberal justice.

So, of the current Supreme Court members, Democratic appointed candidates fly through confirmation at an average of 80% affirmative votes but Republican candidates squeak by at only 60%, and this number will assuredly go down later this week when the Senate votes on Kavanaugh. Even if confirmed, it will likely be by a mere 1 or 2 votes. As a side note, a Democratic appointee hasn’t been rejected since the Grover Cleveland presidency. Yeah, it’s been a while.

What’s the reason for such a voting discrepancy?

Let’s pose a few ideas.

Option 1: Do conservatives have a more literal view of the constitution? As such, their role as “advice and consent” hinges more on whether a candidate is worthy of such a nomination regardless of whether they agree with his or her political persuasion? Ginsburg might be a good study here. She was clearly a judge with a very liberal voting record. She was even a member of the board of directors of the ACLU. Clearly liberal. Yet, qualified—even Republicans agreed by joining the Democrats in approving her appointment with an astonishing 96-3 vote. While something like that won’t happen today, you’ll still notice that Kagan and Sotomayor’s confirmations were much easier than all Republican-appointed justices since Roberts.

Option 2: Are liberals more aggressive in seeking their progressive agenda through the court systems? As such, they purposefully seek to confirm justices who they deem to be progressive and are more contentious with those candidates whom they deem will be a hinderance to progressivism? I think this is doubly true with the Kavanaugh nomination because of its significance related to Roe v. Wade.

Option 3. It’s all random?

Option 4: You make the call!

Here is a list of the last nine justices confirmed to the Supreme Court. What will be Kavanaugh’s numbers – if he makes it?

Gorsuch 54-45 (Trump)

Kagan 63-37 (Obama)

Sotomayor 68-31 (Obama)

Alito 58-42 (G. W. Bush)

John Roberts 78-22 (G. W. Bush)

Ginsburg 96-3 (Clinton)

Steven Breyer 87-9 (Clinton)

Thomas 52-48 (G. H. W. Bush)

David Souter 90-9 (G. H. W. Bush)

Whatever these numbers ultimately mean, Trump is going to have to fight and scrape for any of his nominations to get through, and if he did have to appoint a successor to Ginsburg, don’t hold your breath for 96 voting to confirm. Those days are long gone.

Advertisements

Is the 2016 Election really about the Supreme Court?

There are currently 8 justices on the Supreme Court. The oldest ones are as follows:

Ruth Bader Ginsburg – age 83 (liberal)

Anthony Kennedy – age 80  (seen as a swing vote between the conservative and liberal wings of the Supreme Court)

Steven Beyer – age 78 (liberal)

Of course, the 9th seat, currently vacant, was held by Antonin Scalia who was a conservative.

Of the remaining five on the court, the conservatives include Chief Justice John Roberts, Samuel Alito and Clarence Thomas. Liberals include Sonya Sotomayer and Elena Kagan.

So this we know for sure, the new president will choose a replacement for conservative Scalia. We don’t know if there will be any other vacancies, but it is not unreasonable to surmise that there could be anywhere from 1-3 additional appointments which the next president will make. So that means, the next president could impact anywhere from 11% to 44% of the make-up of the Supreme Court.

The court has been so evenly divided in recent years that such a swing could help re-shape the court for the next generation. The current 4-3 liberal advantage (with Kennedy as a swing vote) could increase with a Clinton presidency. A Trump presidency would most likely keep the court in the conservative-leaning 5-4 range.

Now, of course, much of this also depends on the make-up of the Senate which has to approve the president’s appointments. The Republicans currently hold on to power, but it remains to be seen if the Democrats could grab control back from the G.O.P. this November. It might be a long shot, but not out of the question.

So regardless what a voter thinks of Clinton or Trump’s politics and deftness of handing the executive branch, the prospect of changes to the Supreme Court should be a powerful motivator for each side of the political spectrum. Long term societal changes typically come from Supreme Court decisions and the next generation of judges will greatly impact the nation.

I would suggest that voters need to strongly consider the future of the Supreme Court in the hands of the next president. The ideologies between Clinton and Trump in this regard are complete opposites. Trump has promised to choose conservative nominees. Clinton will choose liberal nominees. Depending on your personal political philosophy, this should weigh heavily on your mind as you decide who to vote for this November.

Sorry. These are not examples of racism.

I came across two very different articles today which broached the issues of race. The first one was about Harry Potter actress Katie Leung saying that taxis drivers sometimes compliments her for her good English. (She was born in Scotland, by the way.)

The second one was about Hillary Clinton saying Republicans use “coded racial language” to oppose any Obama Supreme Court nominee.

Sorry. But in regards to racism, there’s nothing to see here – though you wouldn’t know it if you read these articles. You would think that both taxi drivers and Republicans are the most bigoted people in the world.

But all of this is, I guess, to be expected in our super polarized and super sensitive world.

Now, that said, I can understand that Leung gets tired of being looked at as an immigrant or an ESL speaker when she is a native English speaker. Sure, I get that. But a taxi driver commenting on a person of Asian descent’s decent English is not racism. Might have a smidgen of stereotyping, but it is not stating that one’s race is superior to another’s. This is an example of false cultural convergence – the driver thinking he’s running into someone from another culture when he actually isn’t.

Concerning the Hillary quote, she is, regrettably, adding issues of race into a situation where there isn’t any. This is what becomes tiring about politics – and both parties can be guilty of it – throwing our accusations and slight jabs to rile up the faithful into believing something that isn’t true. These kind of quotes are divisive and uncalled for. The issues surrounding the Supreme Court are tried and true political issues, not race issues. Not in any way. Period. And she knows it. But she still says it. This is about the Republicans being unwilling to waver politically in regards to replacing a conservative icon like Justice Scalia. And we all know, one-hundred percent for-sure know that if the situation was reversed, the Democrats would employ the very same delay tactics. It’s bad government, but it’s good politics. But it isn’t racism.

There are plenty of real racial issues in our world to deal with without us having to invent new ones.

Know Your History: FDR’s Big Mistake

Franklin Delano Roosevelt was well-liked in many circles, revered in others, and generally looked upon in a favorable manner by historians. Of course, there are those on the right who criticize his big government model of the 1930s, which greatly expanded government power and reach – something we can all agree hasn’t been diminished since. The merits and problems of his New Deal approach to bring America out of the Great Depression have been greatly debated. Who can blame FDR for wanting to do something drastic? Americans were hungry. They wanted leadership, they wanted decisiveness, they wanted bread. But Roosevelt’s long reach didn’t come without a cost, and the weariness of his decision-making powers showed clearly in 1937 when he took on the Supreme Court and ended up looking slightly tyrannical.

FDR’s big mistake had its roots in the stalled progress of his New Deal programs. After getting essentially a blank check from Congress during his first year in office, FDR signed into law many far-reaching government agencies which were meant to manage the crisis of the Great Depression and put people back to work. However, by 1935, some of the luster began to wane, and the Supreme Court stepped in and started ruling programs unconstitutional – NiRA, Agricultural Adjustment Act … The reasons for the rulings dealt with issues like states’ rights, separation of powers, and over-reaching federal government authority. FDR did not like his programs to be cast aside, and he was determined to do something about it.

That became his unfortunate mistake. FDR, in a rather bizarre grab of presidential power, announced his idea to expand the Supreme Court by six justices, increasing its number from nine to fifteen. The idea behind the plan stemmed from the fact that their were too many conservative justices on the court for his liking, and if he could increase the number, he would be able to choose the six new ones who would, of course, be more favorably inclined to sustain his programs. This incident became known as FDR’s “court-packing” plan – a failed idea if ever there was one. It was immediately criticized from all corners, making FDR look desperate and power-hungry.

But a few short years later, all would be forgiven as he stepped forward with clearer thinking and decision-making abilities as he guided the United States into World War II.

We all make bad decisions, but the great leaders are able to move on and learn from their mistakes. It’s safe to say that Roosevelt was able to do this.

If your opinion is right, you are being disingenuous: A Brief Look at Political Discourse

The US Supreme Court had two significant rulings this week that bolstered the spirits of the country’s traditional establishment. The first was the Hobby Lobby case in which the court ruled 5-4 that small companies, where the owner and the company are nearly indistinguishable, do not have to offer contraceptive coverage (especially the so-called morning after pills) if it goes against the owner’s religious views. The second ruling, also 5-4, was that a home-health care worker who takes care of her disabled son in her own home is not required to join a union of health care workers if she doesn’t want to.

Note how both rulings were 5-4. This led the blog-o-sphere rhetoric to ratchet up to new heights. The left ranted on how outrageous these rulings are and said the typical normal things about how horrible the conservative justices on the court are. One person called it “a kangaroo court”. The right had their own things to say how it was a huge victory for traditional Americans and how they couldn’t imagine what the four dissenting justices were thinking.

Political discourse in America has unfortunately fallen into the deep dark gutter with little or no hope of recovery. Civil discourse is in a long recession – actually, it’s already descended into depression. Mud-slinging is the norm of the day. Dialogue, debate, and mutual respect are a thing of the past.

If everyone would step back and release the cloud of bias that they have been standing in, it might still be possible to see that there are two (if not more) legitimate points of view about everything. Legitimate – as in can be defended with logical arguments. And here’s a news flash, one can respect a point of view without agreeing with it.

America is in the worst case scenario surrounding political discourse – either you agree with the media machine and the talking heads or you are branded as a fool, a bigot, or an uncaring idiot. But the fact of the matter is that none of that is true. Not even remotely true.

What are the two main points of view contending for supremacy in America? Big government vs. traditional America.

The big government view contends several important things. First, that traditional values infringe on people’s rights and therefore need to be curtailed in certain areas (birth control, gay rights, etc…) Second, the government is the logical choice and the only way to right the wrongs of society and to give everyone an equal chance to succeed. Third, the government needs to provide healthcare, education, work training, regulations, etc… which will make America more fair. There’s a lot more here but you get the picture.

The traditional America viewpoint is that government is actually the culprit in infringing on the rights of the individual. Rugged individualism is espoused concerning all things such as religious freedom, gun rights, immigration, etc… They want a smaller federal government. They clamor on how the constitution has been hi-jacked by the federal government and states’ rights have been superseded.

Granted, it is extremely unfair to pigeon-hole everyone into both of these viewpoints. There is plenty of crossover and people are certainly individualistic about what they personally believe about these issues.

But the point of all of this is this: neither one is right or wrong. These are two ways of viewing America. There are extremely intelligent people sitting on the Supreme Court who look across the bench at other extremely intelligent people who vehemently disagree with them. Thus the 5-4 decisions.

Both sides have valid and logical arguments which they can and should espouse passionately. But when one side begins to say that they alone hold the spoils of truth in their hands then they are being disingenuous.

Everyone should form their own opinions, but while doing so respect the opinions of others. Everyone should feel free to defend their own opinions without being branded as a bigot or an ignoramus.

Civil political discourse is beneficial. It’s instructive. It helps people hear both sides and make up their own minds.

Unfortunately, there are too many people in America who want to stifle debate and simply throw verbal bombs at the other side because they know the media will eat it up and run wild with it.

So here is a simple plea to all fair-minded people out there. Use these 5-4 Supreme Court decisions to help a younger person in your life understand the two sides to both of these issues. Teach them to research and come to their own conclusions. Challenge their assumptions and play devil’s advocate to make sure their arguments are logical. And then teach them to show respect for those who believe differently. Perhaps the only way we will ever turn this around is to teach our kids the kind of respect for others that our government and media no longer has.