Why I'm not voting for Toomey in November

I am really upset about the current state of the Supreme Court. Justice Scalia died unexpectedly in February. One month later, President Obama nominated Judge Merrick Garland, an experienced jurist with impeccable credentials. Nearly three months have gone by, and the U.S. Senate has not started the confirmation process. Meanwhile, the high court has deadlocked on several 4-4 decisions.

I am fired up about this because I am a scholar of the Constitution. I used to teach Constitutional law. I believe the Constitution is a living, breathing document, and is deliberately brief, broad and open to interpretation. Also, my senior seminar in college was about the confirmation of Supreme Court justices, so I have thoroughly analyzed this process.

I wrote a letter to Pat Toomey, one of Pennsylvania's senators. Although he met with Judge Garland, he is one of the senators who flatly refuses to begin the confirmation process, because it, according to Toomey and other GOP senators, "doesn't traditionally take place during an election year."

Here is the letter I wrote to Toomey, which outlines my arguments for confirming Judge Garland:

Dear Senator Toomey:

First of all, thank you for your service to the great state of Pennsylvania. I do appreciate your efforts to cut taxes and cooperate with your colleagues in the Democratic Party in an attempt to strengthen background checks for firearms.

The reason I am writing today is because of Judge Merrick Garland, President Obama’s nominee to the Supreme Court.

Justice Scalia, although I personally did not agree with many of his decisions or beliefs, was a highly skilled and qualified jurist with an impeccable knowledge of the Constitution and the laws of our country. His unexpected death was not only tragic, but also a major setback to the Court.

According to the Constitution, it is the President’s duty to nominate justices to the Supreme Court, with the advice and consent of the Senate. President Obama has nominated Judge Garland, who, by all accounts, is an experienced judge who, like Justice Scalia, has a great deal of knowledge and respect for the Constitution and the laws of our country.

I believe the founding fathers did leave some room for interpretation throughout the Constitution. However, I believe the “advice and consent” clause in Article II states that the process of appointing Supreme Court nominees should happen with due diligence. President Obama nominated Judge Garland about a month after Justice Scalia’s death.

Unfortunately, unlike the president, you and your colleagues in the Senate have not performed your function as defined by the Constitution. Two months have gone by, and confirmation hearings have not been scheduled for Judge Garland. As a matter of fact, you and several other Republicans in the Senate refuse to even consider a confirmation hearing for Judge Garland, unless he is nominated by President Obama’s successor after the presidential election. Meanwhile, several important cases are passing through the Supreme Court as deadlocked 4-4 decisions.

I did read the editorial you wrote for The Patriot News describing your position. I appreciate that you took the time to speak with Judge Garland. However, I believe many of your arguments are flawed. First of all, you say: “...I believe it is sensible to allow the American people to participate in the choice of Justice Scalia's successor less than seven months from now.”

First of all, the American people have participated in the choice of Justice Scalia’s successor. The American people voted for President Obama in 2008 and 2012 knowing one of his functions as president is to fill vacancies on the Supreme Court as they arise. Furthermore, according to polls, the majority of voters believe that Judge Garland be granted a fair hearing.

You, along with Senator McConnell, Senator Grassley, and many other Republicans in the Senate, are deliberately delaying this process as a political ploy to not only deliberately thwart the President one last time before he leaves office, but also assume a Republican will win the presidency in November and nominate a different judge, especially because your colleagues mentioned that you would consider Judge Garland after the election.

You also mention the political ramifications of Judge Garland sitting on the Court, such as his tendency to side with the EPA, which could hurt our state’s energy production.

It is for this reason that you should allow this process to proceed, and give Judge Garland a chance to speak in front of the Senate Judiciary Committee. If you don’t like what he has to say and don’t think he is qualified to sit on the Court, it is the duty of you and your Senate colleagues to reject his nomination. It has been done before with Judge Robert Bork and others. Harriet Miers withdrew her name after senators began to doubt her qualifications.

All I ask is that you perform your constitutional duty and consider Judge Garland’s nomination. I will support the decision of the Senate, whether he is approved or denied.

I will promise that you will earn my vote in November if you and your colleagues in the Senate begin the confirmation process for Judge Garland. I only have one vote, but I think this will be a very close election, and every single vote counts. Again, I will support your decision regardless of the outcome. I normally do not vote Republican. I did not vote for you in 2010, and until now, I was not planning to vote for you in this upcoming election. However, nothing is more important to me as an American than leaders who support, uphold and respect the Constitution. It is vital that the Supreme Court be made whole again, and, as a fellow proud Pennsylvanian, I am counting on you and your Senate colleagues to do exactly that.

Sincerely,

Colin Tucker

I sent this letter about two weeks ago. I received a response a couple of days ago. Although I think he sent this response to many different people who addressed concerns about the same issue, the email was addressed to me and signed. Considering he serves the entire state of Pennsylvania and its 13 million people, I genuinely appreciate the quick response. What I didn't appreciate were the contents of the response, which gave the same tired GOP arguments, and addressed none of my counterarguments. I will copy his response here, and rip it apart paragraph by paragraph.

Dear Colin,

Thank you for contacting me about the Supreme Court. I appreciate hearing from you.

As you know, Supreme Court Justice Antonin Scalia passed away on February 13, 2016, and President Obama nominated Judge Merrick Garland about a month later to fill this vacancy on our nation's highest court. There has been much discussion about how the nomination process for this vacancy should be addressed, and I value your input and wanted to take the opportunity to respond.

OK, so far, so good.

 

I have long believed that objective qualifications, character, and adherence to the rule of law matter more than ideology in evaluating judicial nominees. Accordingly, during my five years in the Senate, I have worked across the aisle with Senator Bob Casey and the Obama White House to fill 16 vacancies on the federal bench in Pennsylvania-14 on district courts and 2 on the court of appeals. Only 2 other states-California and New York-have had more vacancies filled during this time. I also have voted to confirm over 100 of President Obama's judicial nominees, and I supported the confirmation of Justice Sonia Sotomayor to the Supreme Court.

He deserves a cookie!

The current vacancy on the Supreme Court, however, presents an unusual situation. In the final year of a presidency, it is extremely rare for vacancies that arise on the Supreme Court to be filled. In fact, the last time such a vacancy was filled was 1932. The vacancy created by Justice Scalia's passing is especially sensitive because it will fundamentally affect the balance of the Supreme Court for a generation or more.

Dead wrong. Justice Anthony Kennedy was confirmed in February 1988, an election year. Granted, this was after the Senate rejected Robert Bork's confirmation for obvious reasons, and Douglas Ginsburg withdrew his nomination because he was a pothead. Also, doesn't any Supreme Court vacancy fundamentally affect the balance of the Court for a generation or more?

Given that we are already well into the presidential election process and that the Supreme Court appointment is for a lifetime, it makes sense to give the American people a more direct say in this critical decision. I believe that the next court appointment should be made after the upcoming elections by the next president.

First of all, as I mentioned in my letter, the American people did have a say. They elected President Obama in 2008 and 2012 knowing that one of his duties as president was to nominate Supreme Court justices. Also, the Constitution is deliberately set up so that people do not directly choose the members of the Judicial Branch. Unlike the President and Congress, I believe the Founding Fathers viewed the justices as being "above" politics, and should therefore not be chosen in a conventional political process. I think the judicial election process in Pennsylvania and other states is fraught with problems, and exemplifies why voters shouldn't elect judges.

On March 12, 2016, I also met with Judge Garland for over an hour. He came across as a pleasant man with impressive legal training and experience, but areas of Judge Garland's record give me pause and our discussion did not assuage these concerns.

Okay, but should this prevent you from even beginning the confirmation process? (see more below)

Under our Constitution's system of checks and balances, federal courts play an essential role in limiting executive abuses of power and stopping unlawful overregulation that is harming Pennsylvania's economy and killing jobs. But Judge Garland's record raises serious doubts that he would serve as an adequate, independent legal check on the administration and its regulators.

For instance, Judge Garland has ruled on dozens of cases involving challenges to new Environmental Protection Agency (EPA) regulations, and he has sided with the agency over 90% of the time. One of the handful of times the nominee ruled against the EPA, he ruled that it was not regulating enough.

I tried to discuss with Judge Garland his views on executive authority, but he was often unresponsive-unwilling to discuss one of his own decisions, and refusing to opine on historic Supreme Court precedents.

So you don't like the guy. This is exactly why we have the confirmation process. If you don't think he is qualified to be a justice, go through the confirmation process and vote against his confirmation!

I also raised with Judge Garland his approach to terrorist detainee cases. He authored an opinion that resulted in the release of 17 Guantanamo Bay prisoners who were part of a group of violent Islamist extremists the State Department had designated as terrorists. They were captured after fleeing an Afghanistan training camp funded by al Qaeda and the Taliban. As a result of Garland's decision, the detainees were ordered released into the United States. Fortunately, another panel of judges on the D.C. Circuit halted this, and the detainees were instead released into other countries.

In sum, while Judge Garland is highly credentialed, areas of his legal thinking deeply concern me, particularly his excessive deference to overreaching agency regulations and his approach to the War on Terror. These concerns, in addition to my preference for giving the American people a voice in November about the long-term balance of the Court, lead me to oppose his nomination at this time.

Again, if you are so concerned about the long-term balance of the court, vote against his confirmation. Judge Garland seems intelligent and experienced. He deserves the change to go before the Judiciary Committee and have his nomination considered. Also, the American people have spoken, and the majority of them, more than 60 percent, say that confirmation hearings for Judge Garland should take place before the election (NBC News poll). Finally, even Justice Ruth Bader Ginsburg says the frequent 4-4 deadlocks have prevented many important rulings, and said, “Eight, as you know, is not a good number for a multi-member court." (The Washington Post)

Thank you again for your correspondence. Please do not hesitate to contact me in the future if I can be of assistance.

Sincerely,
 

Pat Toomey
U.S. Senator, Pennsylvania

Again, I am grateful that Sen. Toomey took the time to respond to me. I am not responding to him because it is obvious his mind is made up. Unless the GOP senators are somehow compelled to start the confirmation process before the election, he has lost my vote. 

This is bad for Republicans, because this election cycle, several Republican senators, including Toomey, face a tough fight in November. There is a possibilty that the Democrats could regain the majority in the Senate.  

The arguments the GOP is putting forward are flawed at best, particularly the "election year" nonsense. The real reason is because Scalia was a conservative justice, and Obama's nominee will be quite a bit more liberal, shifting the ideology of the court. (yes, I know in a perfect world, judges don't make political decisions.) This is a political situation, though. When Justice Scalia was alive, there were a lot of 5-4 decisions. Many senators are afraid that if Garland is a confirmed, there will be a lot of 5-4 decisions going to the "left" instead of the "right," and there are supposedly many crucial decisions in the pipeline on LGBT rights and the environment, which Sen. Toomey addressed in the response. Also, because of Judge Garland's experience and track record, the GOP senators believe he will be confirmed, and therefore want to delay this process.

They are betting on a Republican becoming president, and appointing a more conservative judge next year. Keep in mind that if this does take place, Donald Trump will be our president. That is downright scary.

Also, this is done out of revenge. GOP senators have locked horns with Obama for 8 years.  They are miffed at him for making 32 recess appointments (appointments of senior federal officials while the Senate is not working). Keep in mind that Ronald Reagan made 240 recess appointments over the course of his two terms. They don't like Obamacare. They don't like the fact that he issued an executive order, which doesn't require a vote from Congress, to prevent illegal immigrants from getting deported. Granted, the GOP has a valid argument against some of these policies/actions, but to block the comfirmation of a Supreme Court Justice out of revenge, and the need to screw Obama over one last time is childish and unproductive.

Finally, I give Judge Garland credit for handling this like the professional who he is. Instead of complaining, he is continuing to make an effort to meet senators from both parties, and develop a rapport with them.

The bottom line: The senators need to fulfill their constitutional duty and begin confirmation hearings for Judge Merrick Garland. I don't care if his confirmation is approved or denied, as long as they allow the confirmation process to continue.