Posted by: David Offutt | March 19, 2016

A Lame Duck Nominates a Supreme Court Justice

David Offutt at the U.S. Supreme Court (August 2015)

David Offutt at the U.S. Supreme Court in Washington, DC (August 2015)

When Associate Justice Antonin Scalia passed away, the Senate Republicans, who have majority control, and all the remaining Republican candidates for president at that time did what we’ve come to expect from them at every crisis or significant event: they went straight into panic mode. The U.S. Supreme Court had been under reactionary-conservative control for 44 years and that was about to change! Even before we learned of Scalia’s cause of death, the Fox-Republican-TEA Party announced it would not do its constitutional duty to consider any replacement nominated by President Barack Obama.


Merrick Garland: His addition to the Supreme Court would give the moderates a 5-vote majority on the court.

Merrick Garland: His addition to the Supreme Court would give the moderates a 5-vote majority.

On Wednesday, March 16, 2016, Mr. Obama did his duty and nominated Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. circuit. Judge Garland is a centrist who is highly respected by conservatives, moderates, and liberals, as well as Republicans, independents, and Democrats.  Mr. Obama has ten more months in office, which is much too long to wait for his successor to make an appointment. Mr. Garland should be easily confirmed in short order by a unanimous vote in the Senate, so that he could take his seat on the court on the first Monday in October. The G.O.P. could care less.


Prior to that, on Monday, March 14, 2016, Senate Majority Whip John Cornyn of Texas told reporters than any Obama nominee to replace Scalia “will bear some resemblance to a piñata.” In other words, the majority party plans to put on blindfolds and start swinging at him until he’s bloody and destroyed.  Whether, the nominee is well-qualified for the job seems to be totally irrelevant. What’s going on here?


Sen. John Cornyn (R.-TX) said any Obama nominee to the Supreme Court would feel like a piñata.

Sen. John Cornyn (R.-TX) said any Obama nominee to the Supreme Court would feel like a piñata.

Republican Senate Majority Leader Mitch McConnell of Kentucky professed his party’s primary goal was to make Barack Obama a one-term president. The poor man has never recovered from, nor accepted, the people’s majority vote to re-elect Mr. Obama.  Now, Mr. McConnell says we must wait for the people to decide again in November and wait until January for a nominee. He apparently is hoping for someone in his party to be elected, although very few in his party can stomach either Donald Trump or Ted Cruz, the two demagogues who are leading in their presidential race. If a Democrat is elected, will McConnell accept the legitimacy of that person? Doubtful.


Left to Right: Antonin Scalia, Clarence Thomas, Samuel Alito, and John Roberts: The four reactionaries (extreme right-wingers) are now missing Scalia. Roberts sometimes joins the moderates, but only rarely.

Left to Right: Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts: The three remaining reactionaries (extreme right-wingers) are now missing their leader Scalia. Roberts joined the moderates two times to uphold the Affordable Care Act, so he is not a strict partisan – that may be very important in the next year or two.

Everyone in the Fox-Republican-TEA Party is always posturing about Mr. Obama’s “executive overreach.“ They often are pretending that he uses executive orders too much, even though he rarely uses them and has done so far fewer times than other presidents.  He uses them reluctantly and only when it becomes obvious that the Republican Congress will refuse to act or is not capable of doing its job – his executive order on immigration is an obvious example. The majority party doesn’t dare lie about his obligation to appoint a replacement for Scalia as being “executive overreach.” That’s part of the president’s job description in the U.S. Constitution.  They only want to prevent him from doing his job.


Left to right: Justices Sotomayor, Ruth Bader Ginsberg, Stephen Breyer, and Kagan: The court's four moderates are usually labeled liberals because they are so far to the left of the reactionaries.

Left to right: Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan: The court’s four moderates are usually labeled liberals because they are so far to the left of the reactionaries.

Presidents are elected for 4-year terms, not 3. The problem, of course, is the 22nd Amendment which limits a president to two full terms or a maximum of 10 years in case he succeeds to the presidency due to the death of the incumbent. It was a Republican proposal intended to prevent another Franklin Roosevelt – a Democrat who was elected 4 times. It was introduced in 1947 and ratified in 1951. Thereafter, every president who gets re-elected becomes a lame-duck president for the next four years, thereby weakening his/her negotiating position with both supporters and opponents.


Under the 22nd Amendment, lame-duck presidencies have rarely been good, but they occasionally worked whenever our two-party system consisted of loyal oppositions. There were threats to our national unity from the Republican right wing during the McCarthy Era, which peaked in 1954, and from the insurgency of Barry Goldwater in the early 1960s, but neither of those occurred during a lame duck presidency.  And after each of those times, the Republicans returned to being a loyal opposition.


Justice Anthony Kennedy: The court's lone conservative who often sides with the moderates. It's his court now more than ever before - as he goes, so goes the court. (Photo by Mark Wilson/Getty Images)

Justice Anthony Kennedy: The court’s lone conservative who usually sides with the reactionaries but sometimes joins the moderates. It’s his court now more than ever before – as he goes, so goes the court. (Photo by Mark Wilson/Getty Images)

Sadly, that began to change when the Republicans took control of the Senate during the Reagan years and began to purge the party of its moderates. Next, Newt Gingrich (Khan) and his Republican horde took over the House of Representatives and the Senate in 1995 and turned the G.O.P. into an exclusively conservative party.  Since then, it rapidly moved to being the extremist, reactionary party that is today’s Fox-Republican-TEA Party. They don’t believe in loyal oppositions.


Bill Clinton’s lame-duck term resulted in a ridiculous impeachment trial simply because Republican right-wingers were determined to do it for whatever excuse they could find. Mr. Clinton, like President Obama, had to deal with a malicious Congress for 6 of his 8 years in office. When Mr. Obama was re-elected in 2012, the Republicans decided to just run out the clock: continue their first-term policy of obstruct and sabotage and don’t let him get anything done for the next four years – and that includes Supreme Court appointments. That’s why Mr. Obama finally resorted to executive orders and executive agreements, no matter how much he clearly hates to use them.


Whenever I hear or read about lame-duck presidencies, I always think about Sleeping Duck Rock in the Canyon De Chelly National Monument in Arizona. Years ago I took a horseback ride with a Navajo guide and came upon a fascinating, lengthy rock on the floor of the canyon. My guide pointed it out and laughed, saying, “It looks like a dead duck to me.” I agreed. And that is precisely how congressional Republicans viewed Mr. Obama’s re-election. Just as the voters were wrong in 2008, so were they wrong in 2012 – this man is not our president. He might as well be a dead duck.

David Offutt at the Sleeping Duck Rock in Canyon De Chelly National Monument, Ariz. (1979)

David Offutt at the Sleeping Duck Rock in Canyon De Chelly National Monument, Ariz. (Summer 1983) [photo was taken by my Navajo guide]

The last lame-duck president to appoint a Supreme Court justice in his final year of office was Ronald Reagan, who appointed Anthony Kennedy in 1988. The Democrats controlled the Senate that year and the vote to confirm him was 97-0. Is there any chance the current Republicans will equally rise to the occasion and confirm Judge Garland? I see no indication that they will change their 7-year strategy of obstruct and sabotage, but I hope I’m wrong.

By David Offutt

A version of this essay was published March 20, 2016, in the El Dorado News-Times as a letter to the editor.


  1. Oh, David …..
    Garland has consistently been an authoritarian who opposes individual liberties and instead supports an authoritarian, pro-business state. No liberal should support his nomination.

    Of course Republicans will fight Obama. THAT’S WHAT VOTERS ELECTED THEM TO DO. I wish I had a party that would fight for my interests half as hard as Republicans fight for theirs.

    The question is, what did President Obama ever do to secure a Democratic Congress? Did he have a “50 state plan?” No. Did he use his first 2 years in office to end the wars, prosecute the Bush war crimes, and pass popular legislation? No, Obama SURGED the wars, bailed out Wall Street, and passed the unpopular ACA at the behest of his corporate backers, all the while pushing for more free trade agreements.

    Exit polls for the 2010 midterms showed that Republicans won due to the controversy over the ACA, which lacks popular support to this day (47% approval according to the most recent Gallup poll). Obama has no one to blame but himself for our national gridlock. He will be remembered as, if not the worst president ever, then certainly one of the ten worst. Instead of reversing Bush policies and prosecuting Bush war crimes, Obama expanded those policies and committed the same war crimes. Like the Clintons, Obama is a DINO — Democrat In Name Only. Obama’s nomination of Garland is merely his latest betrayal of the working class.

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