“McConnell refuses to say whether 'nuclear option' in Supreme Court nomination is on table”
“Trump favors "nuclear option" if Supreme Court pick gets blocked”
“Senate Dems will filibuster Trump’s Supreme Court nominee”
Those are three headlines from Fox/CBS/Politico on the coming nomination fight over the seat on the United States Supreme Court left open by the death of Justice Antonin Scalia. The current chatter is about who the nominee will be, whether the Democrats will attempt to filibuster him or her, and if so, whether Majority Leader Mitch McConnell (R-KY) will attempt to change the Senate rules to block such a filibuster. Doing so will allow Republicans to approve the nomination with a simple majority of fifty-one votes, instead of the sixty-vote super majority now required by Senate rules for Supreme Court nominees.
Harry Reid’s Senate used a simple majority vote to change the rules of the Senate in 2013, lowering the threshold for all Presidential nominees except those nominated for the Supreme Court. This change will occur, if not now, then by some Congress soon. It will happen for one simple reason – the Supreme Court itself has become a Super-branch ® of the Constitution. The Court’s rulings cannot effectively be challenged or changed unlike those of Legislative or the Executive branches.
A few years before he died, Justice Scalia said, “The one [constitutional] provision I would amend is the amendment provision.” He explained that changing the constitution via the amendment process is infinitely more cumbersome now than at the founding of the republic, and therefore makes changing it near impossible. Scalia went on to state his own math revealed that less than 2% of the population could block an amendment’s passage.
There is one other way to overrule a Supreme Court opinion besides a Constitutional Amendment – a new ruling from the Supreme Court. If you want Roe v. Wade or Citizens United to no longer be the law of the land, get a sympathetic majority on the court.
Scalia himself favored the Senate engaging the nominees on the controversial issues of the day. Not because he thought it was a good practice, but because it was necessary given the stakes. He preferred that to “letting the Supreme Court, without any political control, re-write the Constitution term-by-term.”
Look at the list of largest dollar political contributions, and you find a list of organizations whose issues will be before the Court. Healthcare -- Telecom -- Tech -- Education -- Unions – all there, with existential issues to be decided. Let’s remember this not a social club, but a pay for play arrangement. Sooner or later the rent comes due, and for these Senators, the rent will be the vote on the Justice, or the vote on the nuclear option. After all, special interest pleaders require a return on their investment.
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