THE SUPREME COURT: POLITICS VS. PRINCIPLE ON BOTH SIDES AS USUAL

It should be clear to even the most casual observer that the selection process i.e.

 nomination and Senate approval of Supreme Court Justices is, and always has been, a political process, that is, a shared responsibility between the executive and legislative branches of government inevitably characterized by partisanship.  Presidents pick nominees who they believe will enhance or protect their ideological orientation and political preferences, both past and future. The Senate’s Constitutional responsibility to “advise and consent” to the President’s nominations usually but not always, follow the partisan preferences of the majority party.

Twenty-seven of the nation’s 44 presidents, in every decade since George Washington whose nomination of John Rutlidge failed by a vote of 10-14 in 1795, have had nominees fail in some respect, mostly by politically motivated rejection by the Senate vote.

Numerous examples in the modern era support this fact.

Franklin Roosevelt’s famous (or infamous) attempt to not only appoint justices who would support his New Deal program but to increase the number of Supreme Court justices to give him supporting majorities was called “ the Court Packing” scandal.

The nomination of Robert Bork in 1987 by President Reagan was a blatant exercise in ideological/political conflict.  The opposition raised by liberal Democrats was vicious.  Senator Ted Kennedy’s  over the top comments before the Senate best describe the hysteria driven by abortion proponents  fearing that Bork would seek to overturn the Roe vs. Wade decision of 1973. Kennedy described Bork, a prominent legal scholar and sitting judge on the District of Columbia Court of Appeals thusly:

         "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids..." 

His defeat by liberal Democrats even resulted in the creation of a new verb to describe the political assassination of future nominees  i.e. “Borking”. 

In 1991, George H.W. Bush nominated federal judge Clarence Thomas to the Supreme Court.  Thomas, an African American was to replace the retiring African American civil rights icon, Justice Thurgood Marshall. This in itself was an obvious political move by Bush as it was seen as politically necessary to maintain a “black seat” on the Court.  But the liberal supporters of such a requirement were taken aback by the fact that Thomas was a “strict constructionist”, a legally conservative viewpoint, and again was portrayed as opposed to Roe vs. Wade and to race based affirmative action.  

Statements were made that he would be “Borked” and an effort to do just that was made by the appearance of a former legal associate of Thomas’s who claimed that he sexually harassed her.  Her credibility however was insufficient to derail his appointment although he barely survived with a 52-48 vote.

Now with a controversy brewing over the replacement of recently deceased Associate Justice Antonin Scalia, it is no surprise to see it driven by ideology and politics.  Republican Senate Majority Leader Mitch McConnell made his position clear:

            ““The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

This is pretty clear.  McConnell is holding out the hope that the Republicans will take the White House in 2016 and replace Scalia with another conservative; there's no hiding the political motives.

The Democrats aren’t hiding theirs either but are trying to.

Here’s the Left wing Huffington Post:

                “ the assertion that this entire year has become off-limits to filling a Supreme Court vacancy has no constitutional basis; it would also harm the Court itself as well as devalue the votes cast for Mr. Obama in 2012.”

Of course a delay in considering a Supreme Ct. nomination has no “constitutional basis”.  That’s because the Constitution contains no timing provision for the process, one way or the other.  How such a delay would “harm the Court itself” is not explained.  If it somehow “devalues the votes cast” for Obama in 2012 then that is simply a political tactic so common in the nomination of Supreme Court justices and not much different than a vote of rejection by an opposing party majority in the Senate.

Huffpo continues:  “And McConnell's partisan obstruction should now be seen by everyone for exactly it is.”

Correct, and they do; just like the twenty-seven historical “partisan obstructions” cited above.

 “The American people should not countenance this effort to hamstring the Supreme Court and its critical role in our nation for a year or more.” the Post continues.

This of course isn’t credible. The Court will continue its usual schedule with eight instead of nine Justices.  This isn’t unheard of since it is not unusual though, fairly uncommon, for a sitting Justice to recuse himself if he has had a prior interest in a case, thus allowing the remaining eight to decide. Clearly the Court will not be “ham strung”.

Senate Minority Leader, Democrat Harry Reid has also predictably weighed in:

           

            “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”

But the Senate is under no Constitutional responsibility to fill a vacancy with any particular nominee and the process can take as long as needed.

The Democrat’s sense of urgency is just as based on ideological/political motives as is the Republican’s reluctance to proceed.

This  reluctance , while motivated by partisanship is understandable.  President Obama has already secured the nomination of two Supreme Ct. justices.  Both have turned out to be reliably liberal. These two women are also relatively young by Supreme Ct. standards and will serve for decades under the Courts life-time tenure.  There is no reason at all to think that Obama would not nominate another “young” liberal in an attempt to create a semi-permanent ideological bloc on the Court. 

Obama’s “executive order” disdain for the legislative component of the “separation of powers” concept enshrined in the Constitution is a further “red flag” to a further reconstruction of the Court by him.

In fact, Obama and his surrogates are not in a good position to lecture the Republican Senate regarding their "constitutional responsibility". Obama has violated the Constitution's requirement that he, as President "take care to faithfully execute the laws".  He refuses to enforce the federal laws regarding the sale and possession of marijuana.  He uses "executive orders" to legislate in violation of existing federal laws regarding immigration.  He uses "regulations" to legislate i.e. EPA requirements, to kill the coal industry. 

While Obama has announced his intention to go ahead and submit a nominee to the Senate, this would also be based on political motivations. The Senate Judiciary Committee could simply postpone hearings which the President would than use as an attempt to demonize the Republicans in this election year.  Or if the Committee agreed to hearings but the Senate majority rejected the nominee, who might well be a minority or female, the Democrats will use the predictable political claims of misogyny or racism for that purpose.  But why put a nominee through the arduous process only as a political tool?  If the Republicans in the Senate say there is no hope until after the election anything else is just another political exercise no better than the Republican delaying tactic.

OBAMA'S MOSQUE VISIT: LONG ON PLATITUDES; SHORT ON REALITY

In early February, 2016, President Obama visited an Islamic mosque in the city of Baltimore, Maryland.  The purpose of his visit, and discussion with the mosques membership plus a subsequent address, was to assure America’s Muslim residents and citizens there and across the nation, that he, as President stood by them as fully entitled citizens. More specifically, his message was to reject the hostility and acts of vandalism that American Muslims have had to endure in the face of international and domestic acts of terror by other Muslims.

No one should argue that such a message, in itself, was not a proper thing to do.  Indeed, included in the religious attire worn by most of the participants were also the uniforms of the Boy Scouts of America, the next generation of American Muslims whose loyalty and adaptation to America’s culture and values is critical if the current gulf of understanding between Islam’s American adherents and the larger society is to be overcome.

So while Obama’s purpose was positive, he cast his speech within narrow boundaries. He seemed to be defining the domestic tension as simply unjustified intolerance of “good” American Muslims and that the nation must do better.

            “We’re one American family.  And when any part of our family starts to feel separate or second-class or targeted, it tears at the very fabric of our nation.”

             “This is a moment when, as Americans, we have to truly listen to each other and learn from each other.  And I believe it has to begin with a common understanding of some     basic facts.  And I express these facts, although they’d be obvious to many of the people in this place, because, unfortunately, it’s not facts that are communicated on a regular basis through our media.

In fairness, he did briefly mention the inescapable conclusion that “peace loving” Muslims have a role in challenging the jihadist interpretation of Islam’s holy texts and its radical religious figures.

            “Muslims around the world have a responsibility to reject extremist ideologies that are trying to penetrate within Muslim communities.”

But the President could have used this opportunity to clearly outline the magnitude of the Islamic jihadist threat in order to further contrast that movement with the hoped for willingness of American and other Muslims living in Western, secular nations to accept the values of their adoptive homes.

Instead he reiterated the flawed argument that the “extremists” were only a “small fraction” of the world’s Muslims. A significant threat need not be represented by a majority or even a large minority.  The basis of this argument is the fact that the total number of the world’s Muslims is 1.6 billion thus a “fraction” or a “percentage” can be characterized as “small” while in reality comprising a formidable number, and horrendous terrorist acts are typically perpetrated by individuals or very small groups.

 On the other hand the Islamic State (IS; ISIS, ISIL) itself is estimated to have up to forty thousand fighters, while recruitment from Middle Eastern and Southeastern European countries continues unchecked. Other  jihadist  groups are located across the world:  Boka Haram in West Africa, Al-Shabab in Somalia, ISIS affiliates in Turkey, Libya, in Islam’s most populace nation Indonesia and in the Philippines.

Al Qaeda terrorists operate throughout the Middle East.

As a counter point to Obama’s diminution of the Islamist threat, while Obama was giving his speech in Baltimore, the U.S. Attorney in Kansas and Assistant Attorney General for National  Security, announced that terrorist suspect John Booker had pleaded guilty to attempting to detonate a car bomb at the Fort Riley Army base. Booker filmed a video he intended to be seen after his deadly attack.

            “You sit in your homes and think this war is just over in Iraq,” he reportedly             said in the video.  “Today we will bring the Islamic State straight to your                       doorstep.”

Still, the debate goes on. Are those in the media, the blogosphere and political realm, especially in this election year, exaggerating the terrorist threat of Muslims living in America?  It would seem so if the standard by which that threat to any individual American is numerical probability, or the numerical probability of any specific Muslim American or resident being a perpetrator of a terrorist act which is correspondingly small.

But how many individual domestic Islamic terrorists, what level of deaths and injuries are  acceptable ?

In his Baltimore speech, Obama said:

 “Engagement with Muslim American communities must never be a cover     for surveillance.  We can’t give in to profiling entire groups of people.  There’s no one  single profile of terrorists. We can’t securitize our entire relationship with Muslim Americans.“

These admonitions are overly broad and reject reality. Muslim jihadists in the U.S. have in many, if not most cases, been associated with mosques. Anwar al-Alaki the U.S. born terrorist whose assassination Obama authorized was interviewed several times regarding his ties to three of the 2001 Twin Towers attacks. He had met two of them at a mosque in San Diego in 2000. He later became a preacher at Dar Al Hijrah Islamic Center in Falls Church, Va.

After moving to Yemen he became closely associated with the terrorist group  Al-Qaeda and has been associated with the 2009 Fort Hood, Texas terrorist attack, the so called “Underwear bomber” plot to blow up a U.S. airliner and the failed 2010 “Times Square” bombing plot.

In 1995, the so called “Blind Sheik”, Omar Abdel Rahman, an Egyptian jihadist, was convicted in the conspiracy to blow up the World Trade Center in 1993.  Rhaman had entered the U.S. on a tourist visa, was later granted permanent residency and while using New York City as a base and preaching at three different mosques there, he traveled the country preaching hatred an advocating violence.  He even issued a “fatwa” declaring it lawful to rob banks and kill Jews in America.

These two examples are not part of a “tiny fraction” of Islamic mosques in the U.S.  In  December, 2011 the Terrorist Research Initiative released a study entitled “Perspectives on Terrorism”.  The study, “The Shariah Adherence Mosque Survey” was based on a random sample of 100 of the more than 2000 Islamic mosques in the U.S. and found that:

“80% of U.S. mosques provide their worshippers with jihad-style literature promoting the use of violence against non-believers and that the imams in those mosques expressly promote that literature."

The study also found that when a mosque imam or its worshipers were “sharia-adherent,” as measured by certain behaviors in conformity with Islamic law, the mosque was more likely to provide this violent literature and the imam was more likely to promote it.”

In another recent study, North Carolina University professor Charles Kurzman, found that

. . .”attacks and disrupted plots by Muslim Americans in 2015 more than doubled over 2014.”

He of course added the academically required politically correct numbers rationale that “. . .the overall threat they posed to public safety has been exaggerated.” 

But had all of the 81 “violent extremists plots in 2015” which the report identified  been successful, the carnage would have been extreme, even though the threat to any single American across the nation would have been acceptably low by politically correct standards. 

With  respect to the President’s claim that “There’s no one single profile of terrorists.” it is only technically true given that a few of the domestic terrorist plots and acts have been carried out by non-Middle Eastern individuals.  Still the vast majority of these activities have involved young men or older radical preachers of Middle Eastern or South Asian ethnicity. Their common association with mosques or other Muslim social groups engaged, or potentially engaged with the proliferation of radical theology, greatly narrows the profile.  Ignoring this obvious association would be irresponsible and “peaceful American Muslims” should be convinced to be part of the watchful eye of the government for their own benefit.

So President Obama continues to believe that acknowledging actual and possible future terrorist attacks on American citizens as a significant part of the world’s and America’s Islamic belief system is a not a reality and is only a numerically tiny theological and liturgical aberration. 

He is willing to constrain obvious security measures and accept deaths and destruction as “collateral damage” in an effort not to offend the larger Muslim American community.  Vandalism and verbal abuse against the innocent members of this community should not be excused as inevitable or justified but these offensive acts are in fact carried out by a “tiny fraction” of the non-Muslim American population against a “tiny fraction” of American mosques. 

American Muslims need to do more to join the fight than issue simple statements of overused and tepid “condemnation”.  Vigorous programs of instruction about the nature of their “peaceful religion” need to be a continuous part of their religious programs and a careful screening of their religious leaders should be exercised.  They should accept the reality of the security situation and cooperate with authorities in identifying those in their midst who represent potential threats of violence, which is the root cause of their dilemma.

Once highly visible actions across the nation along these lines are put in place instead of the steady drum beat of “Islamophobia” and “victimization” the American public will be able to draw the distinction between the extremists and the American version of Islam.