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Mullings by Rich Galen ®
An American Cyber-Column By Rich Galen
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Supreme Court

Rich Galen

Monday September 24, 2018

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  • All eyes will be one the Senate Judiciary Committee hearing room this week as we move ever closer to the denouement of the truly extraordinary case of Ford v. Kavanaugh.

  • Just to review: Judge Brett Kavanaugh has been nominated to fill a vacancy on the U.S. Supreme Court. He appeared to be moving toward confirmation by the full Senate when the senior Democrat on the Judiciary Committee, Diane Feinstein released a letter written by Dr. Christine Blasey Ford, PhD accusing Judge Brett Kavanaugh of having sexually assaulted her during a party among students at Maryland private prep schools when she was about 15 and he was about 17. The confirmation process ground to to an absolute halt.

  • It seems like that happened in 1835 but it was actually just about 12 days ago.

  • Article III of the Constitution - the Judiciary - is all of 375 words long. As a contrast the new rule dealing with immigrants being able to maintain a Green Card and receive Medicare Part D benefits (among others) is 477 PAGES.

  • Nothing in the Constitution suggests the number of Justices who should sit on the Court. The present number is, at full strength, nine. In 1789 the Congress set the number at six - a Chief Justice and five Associate Justices. After some tinkering over the next 80 years, in 1869 the number was set at nine where it has remained ever since.

  • Franklin Roosevelt, cranky because conservatives on the Supreme Court struck down a number of his New Deal programs as being Unconstitutional, attempted to get Congress to raise the number to as many as 15. But, what became known as FDR's Court-Packing Plan, stalled.

  • There is also nothing in Article III (or anywhere else in the Constitution) that gives the Supreme Court the power to overturn legislation. As we all learned when I took 3-hours of Con Law at Marietta College, Marietta, Ohio 45750, the concept known as "Judicial Review" was claimed by the Court in 1803 in Marbury v. Madison.

  • Federal judges - from Supreme Court on down - all serve life terms. The Constitution's sideways way of saying this is:
    "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior."

  • Federal judges can either resign, die, or be impeached and convicted. In the history of the Republic 15 federal judges have been impeached. According to Ballotpedia.org
    "Of those fifteen, eight were convicted by the Senate [and removed from the bench], four were acquitted by the Senate, and three resigned before an outcome at trial."

  • A man named Alcee Hastings had been a federal judge in Florida but lost his seat when was impeached by the U.S. House (controlled by Democrats) in 1981 for accepting a bribe (413-3) and was then convicted by the U.S. Senate.

  • Hastings has since run for, and been elected to, a seat in the U.S. House as a Democrat from Florida where he serves today.

  • F. Scott Fitzgerald was wrong.

  • Getting back to the Brett Kavanaugh situation, since 1917, the Court has begun its annual term on the first Monday in October - which is one week from today. Thus, the sense of urgency to get his nomination out of the Judiciary Committee, onto the floor for a vote, and send him across First Street, NE to don his Supreme Court robes.

  • As I write this - on Sunday evening - the Committee is scheduled to meet on Thursday to hear testimony from both Dr. Ford and Judge Kavanaugh.

  • Since I was still saying - as late as Tuesday afternoon, November 8, 2016 that Trump couldn't possibly win - I have gotten out of the prediction game.

  • There are 11 Republicans and 10 Democrats on the Committee. It is clear that no Democrats will vote for Kavanaugh. It is likely that no Republicans will vote against him.

  • Assuming his nomination is sent to the Senate floor, the split there is 51-49 in favor of the Republicans. Thus, the Rs can affort to lose one vote (assuming the Ds hang together). That would make it 50-50 and leave it to Vice President Mike Pence to break the tie.

  • The Supreme Court will open its session regardless. It operated with a vacancy for 422 days from the time Antonin Scalia died and Neil Gorsuch was confirmed, so a couple of days, weeks, or even months might slow, but wouldn't stop the flow of justice.

  • Last point about the Supreme Court. When I first got to Washington, I was amused at the gentle way signs were put outside Committee meeting rooms suggesting - pleading - for visitors to keep the noise down.

  • Across the street, at the entrance to the Supreme Court chamber there was a sign (that might still be there) simply saying: SILENCE

  • Thus, the difference between having to run for re-election and being appointed for life.

  • On the Secret Decoder Ring today: A great collection of links and items: A timeline of the Kavanaugh/Ford issue; the full text of Article III, a look at Marbury v. Madison, a list of fun facts from History.com, what that F. Scott Fitzgerald line means; and, why the Supreme Court term starts on the first Monday in October.

    The Mullfoto is of a pup patiently waiting outside the window of a local Starbucks.

    -- END --

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