Tag Archives: Thurgood Marshall

If only the VP hadn’t said what he said …


Vice President Joe Biden delivered a stern message today to some university students and faculty members

about the obstruction occurring in the U.S. Senate.

It’s threatening the core of our republic, he said. Senate Republicans must not obstruct President Obama’s effort to fill a Supreme Court vacancy; they must allow nominee Merrick Garland to have a hearing, then they must debate the merits of his nomination and they must then vote on it.

True enough, Mr. Vice President.

But what about those remarks you made in 1992 about whether President George H.W. Bush should be able to nominate someone to the high court in an election year? Today’s Republicans are seeking to block Obama’s pick because this, too, is an election year and they want the next president to make the selection.

The GOP has beaten the vice president over his remarks then.

What they don’t say¬†is that Biden also declared that he would support a “consensus candidate” in an election if one were to be presented to the Senate Judiciary Committee, which Biden chaired at the time.

Biden told the Georgetown law students and faculty members: “Dysfunction and partisanship are bad enough on Capitol Hill.¬†But we can‚Äôt let the Senate spread that dysfunction to another branch of government, to the Supreme Court of the United States.”

It’s fascinating to me that then-Sen. Biden’s remarks now have become known as the “Biden Rule,” which has¬†never existed.

I won’t defend Biden for making his remarks in 1992. He was wrong to suggest that a sitting president shouldn’t be allowed to perform his job if he had been given the chance to do so. President Bush did select a Supreme Court justice in 1991, when he nominated Clarence Thomas to take the seat vacated by the death of Thurgood Marshall.

However, I won’t condemn Biden for holding that view. He did, after all, add the caveat that he would support a consensus candidate for the Supreme Court.

The here and now stands on its own.

The vice president is correct to insist that today’s Senate should stop its obstruction and allow the president to fulfill his constitutional duty — and do its own duty to give an eminently qualified nominee the fair hearing he deserves.


Act on the president’s court nominee


I remain strongly in support of presidential prerogative.

It’s been one of my core beliefs ever since I started thinking seriously about policy, politics and government.

When I read stories over the past few days about how Senate Republicans plan to block President Obama’s pick for the U.S. Supreme Court — before even knowing who it is — it sends me into deep orbit.

The GOP is digging in. So is the White House.

In my view, the president’s constitutional authority should override the Senate’s role in this decision.

I’ll reiterate here something I hope hasn’t been lost on those who read this blog. My belief in presidential prerogative crosses party lines. This isn’t a partisan issue with me.

In 1991, Republican President George H.W. Bush nominated Clarence Thomas to the high court to replace Justice Thurgood Marshall. I stood behind the president on that pick while working for a newspaper in Beaumont. Did the president overstate Thomas’s qualifications for the court by calling the “most qualified man” he could find? Yes, he did.

But that was his call to make. George H.W. Bush was our president, who had been elected decisively in 1988. He earned the right to select someone with whom he felt comfortable. As for the allegations of sexual harassment that arose late in the confirmation process, well,¬†I didn’t buy entirely into what was being alleged.

Four years earlier, President Ronald Reagan selected Robert Bork to the court. Was he the kind of jurist I would have picked? Heavens no! But that wasn’t my call to make. It belonged to the president. The Senate saw it differently and rejected Bork’s nomination to the court — despite Bork’s well-known brilliance and knowledge of constitutional law — on grounds that he would fundamentally reshape the direction of the Constitution.

The process worked as it was intended, even though I believed then as well in the principle of presidential prerogative.

Barack Obama is equally entitled — just as any of his predecessors have been — to put someone forward to sit on the nation’s highest judicial authority. The death of conservative icon Antonin Scalia has shocked us all. The court won’t stop functioning with only eight justices.

The larger problem, though, might lie in the Senate, where Democrats are vowing revenge if Republicans follow through with their threat to block the president’s court nominee from even getting a hearing.

The Senate could shut down. Government could stop. The upper congressional chamber could become a logjam of legislation approved by the House, which cannot become law over a dispute that Senate Republicans will have started.

For what purpose? To deny the president of the “other party” a chance to fulfill his constitutional duty, to which a majority of Americans entrusted to him twice with their votes.

Republicans want to wait for the next president to take office. They are gambling that the 45th president will be one of their own. It’s a risky gamble, though, that threatens to stymie everything else that their own constituents elected them to do — which is to govern.

Let’s just call him ‘Silent Clarence’


I actually thought it had been longer than a mere decade since Supreme Court Justice Clarence Thomas had asked a question during oral arguments before the nation’s highest court.

Nope. It’s only been 10 years.

The New York Times article attached here spells out what Justice Thomas has settled on as his reason for remaining silent.

It’s discourteous, he told the Times.

Discourteous? You mean if a lawyer says something that you believe needs clarification, but none of your court colleagues wants to seek some clarity, that you don’t want to be rude by asking the lawyer a question?

I don’t quite get that.

On second thought, it makes no sense at all.

Justice Thomas was President George H.W. Bush’s pick in 1991 to serve on the court. He succeeded perhaps one of the most argumentative men ever to serve there, the late Justice Thurgood Marshall, who earned his Supreme Court spurs by arguing successfully before the court on the historic Brown v. Board of Education decision that ended desegregation in public schools.

President Lyndon Johnson made history by appointing Marshall to the court in 1967, making him the first African-American to serve there.

Justice Thomas is a decidedly different type of high court jurist, both in judicial philosophy and temperament, apparently, than the man he succeeded.

I believe President Bush offered¬†a serious overestimation of Clarence Thomas when he called him the “most qualified man” to sit on the high court.

That said, Thomas has been true to his conservative principles over the past quarter century.

As for the next time he asks a question of a lawyer, you can be sure the media will make a big deal of it.


Scalia recuse himself from race cases? Not a chance


U.S. House Minority Leader Nancy Pelosi is angry at Supreme Court Justice Antonin Scalia.

She’s mad at remarks that Scalia made during oral arguments involving an affirmative case involving the University of Texas. Scalia contended that African-American students might not do as well academically at UT as they would in “slower-track schools.” The statement has drawn much criticism against the outspoken justice.

Pelosi thinks Scalia now must recuse himself from future discrimination cases because of his bias.

Let’s hold on, Mme. Minority Leader.

Don’t misunderstand me. I dislike Scalia’s world view as much as the next progressive. But calling for him to recuse himself from these cases goes way too far. According to Politico: “It’s so disappointing to hear that statement coming from a justice of the Supreme Court. It clearly shows a bias,” Pelosi said. “I think that the justice should recuse himself from any case that relates to discrimination in education, in voting, and I’m sorry that he made that comment.”

Consider something from our recent past.

The highest court in the land once included two justices who were philosophically opposed to capital punishment. The late Justices Thurgood Marshall and William Brennan voted automatically in favor of¬†capital defendants’ death sentence appeals. If a death row inmate’s case made it to the Supreme Court, he or she could depend on at least two votes in favor of the appeal.

In fact, Justice Marshall was particularly blunt about it. He said repeatedly that he opposed capital punishment, yet he took part in those appeals.

Did he ever recuse himself? Did pro-death penalty forces make the case that he should? No to the first; and unlikely to the second.

Federal judges — and includes the nine individuals who sit on the highest court — all have lifetime jobs. That’s how the Constitution set it up. Presidents appoint then; the Senate confirms them and then they are free to vote their conscience.

Scalia need not recuse himself. He is free — as he has been since President Reagan appointed him to the court in 1986 — to speak his mind. He has done so with remarkable candor — and even occasionally with some callousness — ever since.