Meanwhile, Back at the Constitutional Crisis….

Checks and balances. Impartial justice. The rule of law. These are considered to be bedrocks of American government–or at least, they have been. Yet a full-throated attack on those principles has been inexplicably downplayed if not ignored by the media: the inexcusable refusal of Republicans in the Senate to fill vacancies on the federal bench.

This effort to subvert a co-equal branch of the United States government did not begin with Senate Republicans’ unprecedented refusal to “advise and consent” to President Obama’s nominee to replace Justice Antonin Scalia. For the past several years, the Senate GOP has stubbornly resisted acting on most of Obama’s judicial nominees.

Note that this refusal is entirely unconnected to the bona fides of the individuals nominated. The Senate has declined to confirm them because they are Obama’s nominees.

According to the Federal Bar Association, vacancies in the district courts, where most federal judicial work gets done, are reaching crisis proportions: 65 seats on the federal district court bench and at least 90 vacancies throughout the Article III courts. That’s more than 10 percent of the federal judiciary.

When court dockets are slowed to a crawl, when there simply aren’t enough judges to move litigation at a reasonable pace, people with legal grievances are the ones who bear the consequences. They face unpalatable choices: they can settle for less than they are entitled to or wait an extra couple of years for their day in court.

When neanderthal Tea Party types throw tantrums and completely shut down government, everyone notices–and the polls reflect widespread disapproval. Refusing to fill positions that are needed if government is to function properly is far less public, so it doesn’t engender the same level of public opprobrium, but the result—while slower—is the same.

Recent vows by Senators Cruz and McCain to block Supreme Court nominees through an entire Clinton Presidency, and reports that Senate Republicans are already meeting to plan how they will block her nominees should remove any doubt about the motivation for the GOP’s behavior.

In North Carolina, Senator Richard Burr was recorded stating that if Clinton is elected, he will do everything possible to “make sure that four years from now, we’re still going to have an opening on the Supreme Court.”  Here in Indiana, GOP Senate candidate Todd Young has enthusiastically thrown his lot in with those promising to block Merrick Garland, or anyone else nominated by Obama–or, presumably, Clinton. His website has featured a prominent “petition” encouraging signatories to “stand with Todd” against filling the vacancy.

This is what it has come to: Candidates for the United States Senate are asking Americans for their votes; in return, they promise to throw sand in the gears of the government they are being elected to manage.

Vote for me, and I’ll work to dismantle our Constitutional system!

Todd Young, a candidate for the United States Senate, is proudly telling voters that when the interests of the nation—their interests—come into conflict with the prospects of his political party, he will ignore his obligations to them and to the Constitution if doing so will benefit his party.

We are getting used to politicians placing partisanship over country, but the predictability of this behavior doesn’t make it any less reprehensible.

Our local sorry excuse for a newspaper reported Todd Young’s position on the courts as  “he will work for judges in the mold of Justice Scalia.” It didn’t reference his “petition” or contain any indication that anyone had bothered to ask him about his pledge to deny confirmation to qualified jurists simply because the other party nominated them.

The lack of media attention to this intentional crippling of the federal court system, an issue that affects all Americans, is frustrating. Why isn’t every candidate for U.S. Senate being asked “If elected, will you do your job? Will you provide your honest advice and consent to nominees for the federal bench? And if not, why not?”

I for one would like to hear Todd Young’s response.

Addendum: If you are as frustrated as I am about what has passed for reporting during this election, the ACLU is hosting a discussion tonight, at 5:30, at Emmis Broadcasting. The title is “Election 2016 & the Media: A Free Press or a Free-for-All?” Details are here.


  1. Hillary got it wrong. Those deplorables are not the unwashed rabble we see at Trump’s rallies, but rather they are the Republican Party’s elected elites and their backers.

  2. Ignorance of or ignoring the Constitution seems to be the crux of the majority of our legal and moral problems today – at all levels. Wasn’t it Nancy who recently commented on this blog that we have a “legal system”, not a “justice system”? Viewing SCOTUS from the outside looking in (our only vantage point); we have seen this in recent years as they put the government on the auction block via Citizens United (can any of us on this blog afford those dues?) and the dismantlement of established civil rights and voting rights. The most recent attack on Hillary’s E-mail “situation” either is or is not against regulations, rules, ordinances or laws within the DOJ and FBI. “Weinergate” was “outed” in 2011; where were the DOJ and FBI or local law enforcement regarding Anthony Weiner’s sexting capabilities on all computer sources in his possession?

    If Donald Trump is not breaking election laws or is considered a qualified presidential nominee; there is definitely something wrong or missing from the legal system, justice system and the Constitution. Sadly, the Constitution is the source of our Trump problems. I pulled out my copy of the Constitution of the United States of America and reread Article II; it’s primary concerns are regarding the state electoral appointees and their ultimate presidential selection (which isn’t required to base their vote the popular vote). The paragraph describing the requirements to become president is very brief; basically requiring United States citizenship and minimum age of 35 years. The presidential qualification, fortunately for Hillary, refers to “Person”, and doesn’t specify gender.

    A letter to the editor of the Star this morning, “Trump signs stolen from lawns” of course assumes Hillary Clinton supporters are guilty of these thefts. The attempted destruction and fist fight between the elderly owner of the “Pence Must Go” yard sign (probably a Democrat) and a well known local attorney (Republican) quickly disappeared from the news. We have stooped to stealing political yard signs; for personal use or to destroy? We are in limbo…”How Low Can We Go” is happening now between Hillary and “The Donald” with down ballot candidates sweating it out and this entire country the ultimate victims.

  3. I don’t understand these republicans. They want to shrink government to drown it in a bathtub but forget there are over 300 million lives in the country. How can you decrease government when the population keeps growing? And they say, we can’t have single payer health care because there are too many people to cover and we can’t afford it. How many millions have the republicans wasted on shutting down the government and voting to overturn Obamacare? They just don’t want to do the job they are elected to do. Isn’t there a process of getting rid of these slackers? You can fire an employee, can’t we fire these representatives that just won’t do their jobs? I know there are elections to weed out the bad apples but afterwards, how can we stand by and watch them destroy our Republic from within? Ugh.

    I’m so glad I don’t live in the states right now. My mother in northern Indiana says she can’t even watch tv because of the hateful ads and they aren’t for the Presidential race, they are the local races – like for Young and Bayh etc. One more week of this nonsense.

  4. Let’s be as candid as we can; it is the only way. What about the Bill of Rights? This election is about the Constitution and more. It’s democracy versus racist/theocracy. And democracy is barely holding on at the moment.

    Hillary Clinton is a poor defender against the likes of a Trump/Pence ticket. Trump’s success is explained in detail in a new book. It’s entitled: “Messy: The Power of DISORDER to Transform our Lives” by Tim Harford (New York: Riverhead Books, 2016)p.135

    Just one paragraph or two for example: “In contrast to Trump’s agility , the presidential campaign of rivals such as Jeb Bush could be encapsulated by a word the German High Command used in conversation with Rommel in 1941 to describe the leadership qualities of the British Army. The German word was “scherfallig”—ponderous. The historian David Fraser elaborates: “There was demonstrated, in British actions, rigidity of mind and reluctance to change positions as swiftly and readily as situations demanded…great fussiness and over-elaboration of detail in orders.”

    “In other words, the British were Rommel in reverse: rather than quick, deft, heedless of detail, and happy to make changes on the fly, they [Clinton] were slow, clumsy, tidy-minded, and unwilling to improvise.”

    In her defense, Hillary Clinton is locked into Bill Clinton’s past. She can’t improvise. Consequently, Donald Trump has eventually gained the upper hand. I hope he was too late in doing so.

  5. I was just glancing at Supposedly, the FBI is opening up a closed-case file on a pardon Bill Clinton granted while he was President……just a few days before the election. It would be nice to think so, but FBI agents many times act on their own political persuasion. They have a lot of power. I learned that first hand when I was an attorney practicing law in Dallas in the 80’s.

    Instead of a military coup, it looks like, we might be witnessing an F.B.I. COUP. What’s next?

  6. Trump has forced the issue on WHITE PRIVILEGE. So it’s now all or nothing with the Republicans…. Screw the Bill of Rights, Constitution, the Republic, Treaties, Environment, the Future etc., etc., etc. and I might add, even Jesus.

    It’s unbelievable but very, very true.

  7. Marv; we’ve been comparing Trump to Nazi Germany, Hitler and his brown shirts and ignoring the on again, off again hints at his Russian connection. Which should be especially important at this time due to Comey’s selective selection process. My Russian friend gave me an old Russian adage which fits Trump’s campaign foundation, “Do not stir shit with stick, it will cause stink.” The GOP put the stick in Trump’s fist and the Hillary’s E-mail shit continues to tempt him to stir it…hence, the current stink in the political air which is sticking to entire government branches. Her inability to remove herself from Bill’s shit gives Trump two pots to stir; hoping to distract voters from his own fecal-ridden life which is “scherfallig”.

    After posting my earlier comments I realized that the presidential qualifications as stated in Article II of the Constitution would have qualified John Wayne Gacy and Ted Bundy midway through his killing spree when he reached the age limit. What is wrong with this picture? It does explain how the GOP so easily qualified Trump over the few qualified potential nominees – well, one qualified potential nominee – John Kasich. There was simply no Constitutional barrier to his nomination.

  8. It takes two forces outside of government to make government work properly. The first is a free press that takes both itself and its responsibility seriously. The second is an informed and engaged populous that votes in every election. We currently have neither.

    Many of my friends support term limits. I my view, that is abrogating our personal responsibilty to our country and is shortsighted because it would force many really good public servants out of office.

    The Republicans in the Senate think they will gain the upper hand on SCOTUS soon, because they think Ruth Bader Ginsberg will die, leaving them with a 4 to 3 majority. I pray for her continued good health every day, as should everyone who seeks a just legal system.

  9. JoAnn,

    “Her inability to remove herself from Bill’s shit gives Trump two pots to stir; hoping to distract voters from his own fecal-ridden life which is “scherfallig”.”

    You should have been a carpenter. You hit the nail right on the head. Trump is vulnerable, as you can see, to a COUNTER-ATTACK since he is blind to the fact that he is, as you have so eloquently stated, in fact the eptiome of “scherfallig.” Without Pence and his followers, he is totally defenseless.

  10. JoAnn,

    “Marv; we’ve been comparing Trump to Nazi Germany, Hitler and his brown shirts and ignoring the on again, off again hints at his Russian connection. Which should be especially important at this time due to Comey’s selective selection process.”

    You might be right again. Why doesn’t he reveal his income tax information? Is it because he has been dealing with the Russians? Is he our first MANCHURIAN CANDIDATE? Just speculation. How much difference is there between someone who is brainwashed to commit treason and a sociopath who has similar plans?

  11. Shelia, you set out our constitutional problems and how they came about well. The only way to return to some semblance of sanity in dealing with the renegade in this election who is oblivious to our constitutional institutions and values is to VOTE.
    On another note pertinent to the election next week (and before some of us panic) we also should look at the punditry’s discussion of Trump’s tightening of the early vote (some four million to date) here in Florida based, as it is, on whether such voters were Democrats or Republicans. That is not a proper measure of the peoples’ choice in this election. Just last night we learned that 28% of the Republican vote here in Florida is for Hillary and that she is leading in Florida with 53% of the early vote in her quest for the twenty-nine electoral votes at stake in the Sunshine State, contrary to breathless reporting by TV pundits in search of enhanced Nielsens. Voters here, to their credit and of whatever party, are apparently not into sexual predation and insult as the new norms the Orange One would have us adopt. That is his world; not ours.
    As to judges, I think Republicans’ failure to confirm federal trial judges is a bigger problem than their failure to advise and consent in bringing the Supreme Court back to speed. After all, we do have a system in place to secure final adjudication in an 8-person court since where there is a conflict in adjudication among the circuits the court can take its pick, and that is the law with 4-4 tie votes. However, in refusing to advise and consent, the Republicans are destroying the whole idea of having 9 justices so that ties can be broken, though even then some judicial atrocities are within reach (e.g., George Bush was elected by a 5-4 vote, a decision that led to my resignation from the Supreme Court bar, Citizens United et al.).
    The federal trial court system depends upon calling federal judges in retirement to come back to the bench to help alleviate the problem of overloaded dockets and poor service to litigants, which helps but is not working well in practice with intolerably long waits for trial. It is clear to me from the statements of Republican senators to the effect that they will not consider presidential appointments to our highest court and their continuing refusal to approve the nomination of federal trial court vacancies that we have more than a renegade presidential aspirant on our hands; we are having a renegade Senate as well some of whose Republicans members are refusing to do their constitutional duty for purely political purposes. That, friends, constitutes a constitutional crisis of major proportion and is one that needs quick resolution before our democracy (already under attack by the Orange One and his mob) collapses, not by fascism or economic ruin, but by a rabid political cabal from within. What’s next, a refusal to pass a budget bill which would lead to utter chaos? When we have elected officials who swear to uphold the Constitution and then announce that they will not and with no substantial means short of election for their removal, especially with the six year term of senators, our constitutional problem is exacerbated. What to do? First, VOTE for their opponents! We will get to the crisis later, but not much later.

  12. “Messy” is now my political bible. Another paragraph from page 47:

    “It’s now widely recognized that cognitive diversity [] is a recipe for creativity and an antidote to group think. Indeed the very word “groupthink” was popularized by a psychologist, Irving Janis, to describe a process whereby like-minded people make bad decisions without seriously examining them. Keen to maintaining a friendly atmosphere within the group, they self-censor their own doubts and do not challenge each other. Since the group is full of smart people, each one feels confident that the group must be making a smart decision. Each one abdicates his own responsibility to think critically, assuming that others are doing the hard thinking for him [or her].”

  13. Gerald,

    Reality is not panic. The early voting is also confirming that the African-American turnout is lower than anticipated; that polls are reflecting a rise in the Trump campaign and a corresponding decline with his opponent.

    The world doesn’t end if Donald Trump wins. There would be 60 days before his inauguration. And four years that he would be trying to maintain peace and tranquility. Voting isn’t everything.

  14. Marv, the passage of “Messy” that you quoted in your post at 9:52 is the only thing (along with fear, which makes people irrational) that explains why some smart people support Trump/Pence. Unless they are dedicated to destroying our institutions in order to profit from the resulting vacuum, as are the Koch brothers.

  15. Marv – While voting isn’t everything (witness military juntas in banana republics), it’s the best we’ve got, and I disagree – the world as we know it does end if Trump is elected. I refer to the loss of democracy.

  16. Ginny F,

    Marv; we’ve been comparing Trump to Nazi Germany, Hitler and his brown shirts and ignoring the on again, off again hints at his Russian connection. Which should be especially important at this time due to Comey’s selective selection process.

    Ginny F,

    “…that explains why some smart people support Trump/Pence. Unless they are dedicated to destroying our institutions in order to profit from the resulting vacuum, as are the Koch brothers.”

    I’m afraid, as you have pointed out, the profit motive is much greater than we would hope. The oligarchy that is controlling all aspects of life in Jacksonville [except the library system] has been betting on and also helping to create that vacuum ever since I returned home in 1991.

    If Trump wins, so will Jacksonville, at least for awhile.

  17. Democracy will either emerge from the election reinvigorated or this election will prove it to be incapable of surviving corporatism and oligarchy.

    We will have elected an aristocracy which will continue to dismantle the Constitution.

  18. BTW it seems to me the failure of the press which is so key to any revolution is nothing more than the consequences of media for profit. It encouraged the end of Democracy by recognizing that the path to maximum profit was to encourage and represent both Constitutional Democracy and aristocracy as equals.

  19. Pete,

    I agree with you completely. This is THE do or die election. Trump wins = the end of democracy in the United States.

  20. Theresa and Pete,

    Ditto. Anti-democratic measures will have to be implemented, much like apartheid. The Nazis implemented their controls mainly on the Jews who were less than 1% of the population. Let’s see what happens when you attempt to do that on approximately 40% of the population while your treaty partners and the stock market take note. America will be a SELL. As a matter of fact, short selling has been continually on the rise. I wonder why?

  21. “Todd Young, a candidate for the United States Senate, is proudly telling voters that when the interests of the nation—their interests—come into conflict with the prospects of his political party, he will ignore his obligations to them and to the Constitution if doing so will benefit his party.”

    This IS the Indiana Republican party today; this IS how and why they pulled all support and campaign funds from Senator Richard Lugar because 2-3 times he voted FOR his constituents and what he believed was best for Americans rather than the Republican party. Fortunately, they backed Mourdock who lost to Connelly who has done the same thing Lugar did but only to support his personal views, not for the betterment of the country. Well; a weak Democratic Senator is better than no Democratic Senator, I guess. This IS the privately owned national Republican party today; maybe their support of Trump is to give the party a scapegoat if his racism, bigotry, anti-Semitism, anti-Muslim, xenophobia, anti LGBTQs, anti-disabled and his abuse of woman on all levels becomes too much for this country to tolerate.

    Face it, people, we need to carry a large jar of Vaseline with us at all times.

  22. Said it before and I’ll say it again: the number one qualification for running for public office of any kind, or voting, for that mater, should be PATRIOTISM–country first; politics last. I’m not as concerned about losers like Todd Young putting their party and donors first. I’m more concerned that anyone would consider voting for him and his ilk, based upon their apparent lack of understanding of how such obstreperous posturing hurts our government and prevents it from working as it should.

    Like it or not, one candidate will win, and one candidate will lose. Our system is designed to work in this manner. Whichever candidate is elected President, members of Congress have a DUTY to work with her to enable her carry out the people’s business. If a candidate wins an election of any kind, this is an expression of the will of the people, and it should be honored. After the election, politics need to be put aside and the people’s business should be the priority. It is fair game to consider whether a proposed judicial candidate has sufficient experience, skill and temperament to serve as a judge. It is unpatriotic to refuse to even consider judicial appointments just because the President is of a different party, but that is exactly what Republicans are doing. This certainly must be unprecedented in American history.

  23. Sorry to say people but the Constitution was placed in a trash bag quite some ago.

    Supposedly, we are only supposed to go to war when Congress declares it. However, we have had a series of wars since WW 2 (the last declared war). Congress has given various American Presidents a blank check so to speak to carry on one war after another. Legal subterfuges have been devised to allow this. So Obama can carry on the War on Terror and bomb any country he wants, or least any that cannot hit back just as hard. American “Boots on the Ground” can be sent almost anywhere.

    Now the Ancient Romans had a provision for dictatorship when the state was threatened. Here in the USA as long as Congress funds the Department of Defense the President can use it as he sees fit. The bill for these wars is on the national credit card. Numerous presidents have used this power through out the 20th and 21st Centuries to send in the troops or bomb countries. We could and did torture people we captured or we used surrogates – extraordinary rendition.

    We have stop and frisk (grope) and mass spying, supervised by a secret court (FISA). The court’s judges[28] are appointed solely by the Chief Justice of the United States without confirmation or oversight by the U.S. Congress. FISA warrant requests for electronic surveillance 35,529, # Requests Denied 12.

    I suppose at some point if no new Federal Judges can be appointed, they will begin to die off, at that point the remaining ones could be placed on the endangered species list.

  24. JoAnn,

    “Face it, people, we need to carry a large jar of Vaseline with us at all times.”

    Sorry, there is not a jar big enough. I refer you to “RAT F**KED: The True Story Behind the Secret Plan to Steal America’s Democracy” by David Daley (New York: Liveright Publishing Corporation, 2016).

  25. Marv; “…The Secret Plan to Steal America’s Democracy” doesn’t appear to be so secret any longer. But few seem to recognize or believe what they are seeing and hearing.

    I do some of my best thinking on my daily walks; reached a conclusion today regarding the ELEVEN Trump yard signs in my small neighborhood. I believe they are marking their territory; like dogs peeing on trees. They are identifying themselves to one another because only 2 or 3 know each other as neighbors. I stopped at the one house with a “Clinton/Kaine” yard sign; introduced myself, asked him please not to laugh but…I wanted to thank him for his yard sign and let him know he isn’t alone. He did laugh and after a brief exchange of notes and conversation, his last message to me was “We are alone!”

  26. Natasha,

    “This certainly must be unprecedented in American history.”

    This is all happening to us because we have nothing to tie it to as you have pointed out.

    “In the fourth century B.C. Aristotle observed that a person’s memory of a given knowledge was facilitated by associating that idea with another, either in contiguity, in sequence, or in Contrast.”

    “Comparative learning, making connections between one piece of information and another, is a concept from which I derive my “first law”: you only learn something relative to something you understand.”

    “Among learning theorists, this is known as apperception, which was first put forth in the nineteenth century. It is defined as “a process where new ideas associate themselves with old ones that already constitute a mind,” in “Learning Theories for Teachers”by Morris Bigge.”

    “Information Anxiety” by Richard Saul Wurman (New York: Doubleday, 1989) p. 168

  27. JoAnn,

    “Marv; “…The Secret Plan to Steal America’s Democracy” doesn’t appear to be so secret any longer. But few seem to recognize or believe what they are seeing and hearing.”

    Similarly, few believed that the Holocaust was happening. One good reason was that it had never happened before. That’s the same problem we’re having right now with this election. We have never faced anything like it before. So Trump/Pence is literally getting away with “murder.” No apology for the use of the word.

  28. One of the things lost in the election hype this time is that there really is no Republican candidate. I’d have a hard time identifying any support by the GOP for any national race.

    The hype even is all about the failure of government which most here would agree with. The Republican political strategy has been for 8 years to effectively shut down government (of course just short of not paying Congressional personnel for not doing their job).

    So the question, assuming sanity prevails and democracy survives, is what’s next.

    The choice for the GOP is to continue down the slippery slope they choose 26 years ago or rebuild with new leadership.

    Does anyone see any new GOP leaders on the horizon?

    I don’t.

  29. Sheila, can you in one of your posts please address what we the people can do about this? Yes, I know throw the bums out is one answer. But, given that that isn’t likely, do we have options? Can these folks be charged with dereliction of duty? Treason? They’re not fulfilling an oath they took? What options are there? Somehow, some way we need to take back Congress and have a functioning body instead of a sandbox with a bunch of children!

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