Supreme Court Freakout at the New York Times

The New York Times was once known as The Grey Lady. Today, a more apt moniker would be The Hysterical Bag Lady. The Times editorial board is home to the most immoderate, shrieking Leftism you will find this side of the Nation.

On Christmas Eve, the Times editorialized on The Stolen Supreme Court Seat. It is a classic of the post-Trump-election freakout genre:

Soon after his inauguration next month, President-elect Donald Trump will nominate someone to the Supreme Court, which has been hamstrung by a vacancy since the death of Justice Antonin Scalia in February.

This is wrong. The Supreme Court has been working away, deciding cases. Where the vote is 4-4, as has occasionally happened, the decision of the Court of Appeals stands. Temporarily having an even number of Supreme Court justices (the Constitution does not specify a number) is not optimal, but it isn’t “hamstrung,” either.

No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat.

Seriously? A “stolen seat”? The next Supreme Court justice may be on the Court for decades, but the Times implies that all decisions in which he or she participates will be of questionable legitimacy, since the seat was “stolen.”

What the editorialists mean, of course, is that the justice will be a Trump appointee rather than an Obama appointee:

It was stolen from Barack Obama, a twice-elected president….

It was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court’s conservative majority.

This is the substance of the Times’s complaint: that Senate Republicans “broke with longstanding tradition” by deferring the next Supreme Court selection until after the November 2016 election. How do the editorialists support their claim? By citing their own paper.

The Republican party line — that it was an election year, so the American people should have a “voice” in the selection of the next justice — was a patent lie.

The Times editorial board, like so many liberals, has been unhinged by Trump’s victory. The entire board seems to be off its meds.

The people spoke when they re-elected Mr. Obama in 2012, entrusting [Ed.: sic] him to choose new members for the court. And the Senate has had no problem considering, and usually confirming, election-year nominees in the past.

The link goes to an op-ed in the Times by Timothy Huebner. Huebner writes:

On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. …

In 11 of these instances, the Senate took action on the president’s nomination. In all five cases in which a vacancy occurred during the first quarter of the year the president successfully nominated a replacement.

But those events occurred long ago, and instances where the president’s party also controlled the Senate are inapposite. Mr. Huebner admits:

Of course, none of these represents an exact parallel to today’s situation. In all but one of these instances, the president and Senate majority were of the same political party, unlike today.

The fact is that there is no exact, or nearly exact, precedent for the situation the Senate found itself in when Justice Scalia died earlier this year. A distinguished appellate lawyer wrote to Power Line:

If Grassley has any sense, the nomination never makes it out of committee. The last time a justice was confirmed for a vacancy that occurred during an election year was 1932, and Cardozo was more than acceptable to the Democrats.

The closest parallel in more recent history occurred in 1968:

Chief Justice Earl Warren announced that he would retire upon confirmation of a successor. President Johnson then nominated Associate Justice Abe Fortas to be Chief Justice, and Homer Thornberry to replace Fortas as an associate justice. The Republicans filibustered Fortas, with the vote being taken in October, near the end of Johnson’s term. As a result, Warren did not retire until 1969, when Nixon was president.

It’s not an exact parallel, since there was no vacancy on the court during the election year of 1968. But then, as now, the Senate refused to vote on the president’s nominee, and the decision was deferred until after the election, when a new president nominated a new chief justice.

Nuances of this sort are, of course, beyond the capacities of the Times’s dim-witted editorial board. For them, it is sufficient to spew venom against “[t]he shameful, infuriating actions of the Senate Republicans.” It is fair, however, to ask: if a Supreme Court vacancy had occurred during the last year of George W. Bush’s presidency, when the Democrats controlled the Senate, is there a snowball’s chance in Hell that Harry Reid would have allowed a vote on Bush’s nominee? Of course not. And the Times editorial board undoubtedly would have found excuses to cheer Reid on.

The Times editorialists denounce the “infuriating actions” of Senate Republicans, but what is actually infuriating the Times, one suspects, is that Hillary Clinton lost the election.

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