Solving the Supreme Court
Quandary: Appoint Biden

By

Leonard Zwelling

         Antonin Scalia has died. Thus there is in fact a “balance” on
the Supreme Court—4 Democratic appointments (Ginsberg, Breyer, Sotomayor,
Kagan) and 4 Republicans (Roberts, Thomas, Alito, Kennedy). If a decision is
made by the Court under such circumstances and the vote is 4 to 4, the decision
made by the lower courts on which the Supreme Court is ruling would stand. This
could affect a host of critical cases. 

         President Obama clearly has the right and obligation to nominate
a successor to Justice Scalia. It’s in the Constitution, Article II, Section 2,
clause 2 and the Supreme Court is specifically named as among the appointments
the President needs to make. The Senate is mentioned, too. It will advise and
consent. Fifty-one votes will be needed to confirm the nomination unless the
GOP filibusters and then 60 will be needed to invoke cloture and have the vote.
This could occur as a host of Republican candidates are making a case for the
President not appointing someone simply because we are in the middle of an
election. This is ludicrous, but could lead to that filibuster. You would think all
of those strict constitutionalists running for the GOP nomination would invoke
the Constitution and strictly adherence to it. But no! They think that the
President is a lame duck and he shouldn’t appoint anyone until the people have
spoken in November.

And
where is the responsible person in the Senate? That body must consider the
nomination if it comes. The Senate is free to reject it for any reason they choose,
but tabling it or filibustering it is silly. The GOP has the majority and
controls the Judiciary Committee with Chuck Grassley of Iowa as chair. It is
that committee that would hold hearings for the nominee. If it comes, the committee should hold those hearings.

         So if the President does what is typically done and reach
into the realms of very highly placed lower court justices to find a nominee,
it is equally likely that the Senate will tie that nomination in knots. The
President might threaten to make a recess appointment, naming a new Justice
while the Senate is out of session. Count on the Senate not being out on
session should he try that. They will just show up every day or two and pray or
name a new post office and stay in session until January 20, 2017.

         So this looks like a stand-off. The President can appoint
anyone he likes and the Senate can refuse to confirm that person. No matter who
wins in November, this is bad for the country. We need a functioning supreme
judiciary and at least a “walking” lame duck President. Mr. Obama wasn’t elected for
three years, but for four. If we are attacked on January 19, 2017, Mr. Obama
will determine our first response, so get over the issue of who is President
now. That one is easy.

         So here’s an idea. Appoint Vice President Biden to the
Supreme Court. First, everyone likes him. Second, he is deeply respected in the
Senate as one of their own. Third, he is a rational person who is likely to be
good Democrat on the Court, but not an extremist in any way. Fourth, who needs
a Vice President? We can function way better without a Veep than without a full
complement of Supremes. The GOP should love this. The next in line to the Oval
Office would be Paul Ryan.

         This is not the most ideal of appointments as I am sure the
President would like to appoint a minority or woman or liberal to the bench (or
a minority, woman, liberal). But in this case, to keep the country whole and
the government functioning while allowing the people to not make this
appointment part of what is already far too contentious a Presidential
campaign, why not appoint the Vice President.

He’s
tan. He’s rested. He’s ready!

Leonard Zwelling