Three Questions – Ken’s Take

Ken and Mike came up with three questions to answer in lieu of a midweek short episode. Here’s Ken’s take. Once Mike remembers his wifi password, he’ll post his. Mike remembered it.

Question 1 -Article 2, section 2 clause 2 directly says the president shall appoint with the advice and consent of the Senate. Do you think it’s a wise idea for Republicans to delay a hearing on an Obama appointee?

First, obviously the death of Justice Antonin Scalia is a loss to the country. Despite the fact that I probably disagreed with him on almost every issue, it’s important to recognize that he was a brilliant legal scholar who dedicated his life to serving his country, upholding the Constitution as he believed it to be implemented. Again, while his vision of what the Founders intended and mine is quite different, there was common ground. His views on the First Amendment were often in line with mine.

That said, there’s no way to NOT politicize the vacancy created by Scalia’s death in the last year of President Obama’s second term, in the midst of a hotly contested presidential election.

The Constitution, from a strict originalist point of view, is quite clear on the matter. Article II, Section 2, Clause 2 states that the president:

“shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law…”

It’s important to recall that when the Constitution was ratified there were no other Federal courts except for the Supreme Court. The Founders knew how important it was for a full court to be impaneled. That’s why Section 2 continues on to Clause 3, giving the president the authority to appoint justices without Senate consent if Congress is in recess.

If Obama really wanted to tweak the GOP’s nose, he could have appointed anyone and they would have been fine until the Congress reconvenes. Instead, he’s doing what Ronald Reagan did in 1987, what Franklin Roosevelt did in 1940, what Herbert Hoover did in 1932, what Woodrow Wilson did in 1916, and what William Taft did in 1912; his Constitutional duty.

Instead, the president has said he will nominate a justice, with the expectation that “the Senate [will] fulfill its responsibility to give that person a fair hearing and a timely vote.”

The president, clearly, is an optimist.

“This vacancy should not be filled until we have a new president.” – Senate Majority Leader Mitch McConnell, R-Ky.

“If I were president now, I would certainly want to try and nominate a justice and I’m sure that, frankly, I’m absolutely sure that President Obama will try and do it. I hope that our Senate is going to be able to…do something about it. […] I think it’s up to Mitch McConnell and everybody else to stop it. It’s called, delay, delay delay.” – Donald Trump.

“I really wish the president would think about not nominating somebody.” – Gov. John Kasich.

“I do not think the president should appoint someone.” – Sen. Marco Rubio, R-Fla.

“We are one justice away from a Supreme Court that would reverse the Heller decision, one of Justice Scalia’s seminal decisions, that upheld the 2nd Amendment right to keep and bear arms…the stakes of this election, for this year, the Senate needs to stand strong.” – Sen. Ted Cruz, R-Texas.

“The simple fact is the next president needs to appoint someone with a proven conservative record similar to Justice Scalia.” – Gov. Jeb Bush.

“I fully agree that we should not allow a justice to be appointed during his time.” – Dr. Ben Carson.

So, back to the question – is it wise for the Republicans to delay a hearing for an Obama nominee? It depends on who you’re rooting for in the November election. If you’re like me, and I know I am, you want the Democrats to retain the White House, so yeah, it’s a great idea for McConnell to tadpole up and prove to the American people that the Republicans are more concerned about frustrating the sitting president rather than carrying out the business of government. The American people, left and right, are absolutely furious at the stagnant swamp that is Washington, DC these days. The popularity of Donald Trump’s demagoguery and Vermont independent Sen. Bernie Sanders’ revolution is proof of that.

However, if you, for some reason, subscribe to my colleague and friend Mike’s wrongheaded reasoning and believe in the message of the Grand Old Party, braying to the media that any nominee Obama forwards won’t get a hearing is a damn stupid move. It gives the president every advantage, and will gain the Republicans nothing except more people who are angry that the government isn’t doing, well, anything, who probably weren’t going to the polls anyway, but will now just to throw the bums out. The president, who despite what the meat puppets at Fox News would have you believe, is not a political neophyte. Obama is an intelligent, astute political player. He’s going to submit a name, and if he’s smart – which he is – it’s going to be a name that’s already been through the Senate’s advice and consent rodeo, and emerged with an unanimous vote. There aren’t any shortage of those names – Leonard Strand, Rebecca Ebinger, Jill Pryor, Kara Stoll – and those are just some of the most recent. None of those names are circulating amongst the wonks and Supreme fans as likely on the short list right now, but who cares? This is the doomed political pantomime that is a lame duck president with a hostile legislature. All that matters is Obama puts forward a name that makes the Republicans look like hypocrites when they stonewall. Hell, he could even throw them a real curve ball and name one of their own – Utah Senator Orrin Hatch’s name has been floating amongst the blogosphere lately.

Any way that you slice it, the Republicans adamant stance that no nominee will get a hearing is nothing short of a pathetic last stand, an amateur move on a professional stage, the last gasps of a political party about to rip itself apart. Pass the popcorn.

Question 2 – After the fireworks of Saturday night in South Carolina, what do you think will happen in Saturday’s GOP primary?

Wow. That was something, wasn’t it?

While I expected some fire from Rubio, who needed to make up for his fumble in New Hampshire, and certainly something from Jeb Bush, who needs to, well, do anything, Saturday night’s debate resembled nothing so much as a political Reservoir Dogs final scene.

There was one notable exception to the thrust and parry of verbal sparring that we all watched – Gov. John Kasich. The surprising New Hampshire runner-up decided to, I’m sure, take the high road. However, to a crowd that was actively booing facts and cheering every chunk of bloody red meat that Trump, Rubio, Cruz, and Bush threw to them. Dr. Ben Carson seemed to enjoy what is likely his last appearance on a national stage in 2016.

Trump will win South Carolina, a state who hasn’t liked being part of the rest of the country since about 1806. Ted Cruz is counting on every evangelical between Spartanburg and Charleston to turn out for him, and Jeb Bush is desperately trying to give the establishment a reason to believe in him. Meanwhile, Kasich is wondering where all of the donors who were supposedly going to be flocking to him after New Hampshire’s strong showing are? Rubio has the most to lose and the most to gain, since anything but a second place finish is going to have the pundits and the wags openly contemplating if the junior Florida senator is a tad too green.

Here’s my break down of what happens Saturday:

Candidate Percentage
Trump 35%
Cruz 18%
Rubio 17%
Bush 13%
Kasich 7%
Carson 6%

Question 3 – What’s going to happen with the Democrats in Nevada?

Clinton 50%, Sanders 48%.

Hillary’s once vise like grip on Nevada has eroded. Don’t believe the hype when it comes to Hillary’s pronouncements that Bernie’s victory in New Hampshire was a consequence of proximity twixt the Granite State and the Green Mountain one. Bernie’s message of political revolution, democratic socialism in all of its lowercase letter splendor, and extensive pre-media blitz push toward young voters of color, who feel as though the system abandoned them, has resonated. The Latino vote that Clinton is counting on is going to split along age lines. Those that can rent a car are going Hillary, and those that can’t are going to go for Sanders.

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