Two branches couldn’t find an agreement, so they called on the third branch to resolve it. How is that “usurping the process”?
Right. This is a vital part of the process. This shows that the system is still working.
You know what that means to the GOP: the system is terrible and broken and needs to be torn down!
Wow…districts made up of actual, whole counties where possible!
Naah, couldn’t be…that’s too logical for Republicans to accept.
In all seriousness, what do those against the SC decision expect should happen when a branch acts unconstitutionally and has no interest in resolving the issue? The PA GOP’s defense has boiled down to “well, we’re the ones who get to draw districts so nyah!”
All three branches of government are supposed to uphold the constitution. If one is failing to do so, it’s up to the other two branches to force change. That’s not usurping the process, that is the process.
The NYT has detailed, interactive analysis of the new map.
Because the rules as they currently exist don’t provide for the court to resolve it in the way that they did. An example would better illustrate.
Let’s say that during the Obama administration, there was a Supreme Court vacancy and Obama nominated someone, like, Gerrik Marland. The US Senate didn’t like that person, so they decided to not hold any hearings or vote on this nominee. If someone had standing, pretend it’s Mr. Marland, and filed cert with SCOTUS. SCOTUS then says, well, if you guys don’t like Mr. Marland, we’ll nominate someone else we think is better. That would be usurping the process because the role of nomination belongs to the President.
Or alternatively, SCOTUS simply says, either have hearings on Mr. Marland, or we will confirm him in your place. That would be usurping the role of the Senate because the role of confirmation belongs to the Senate.
So bringing it back to the current scenario - the role of drawing federal congressional districts in PA belongs to the legislature. That’s my take at least. The PA supreme court doesn’t agree with me, obviously. It hasn’t been adjudicated at SCOTUS either, so the jurisprudence around the Elections clause is unchanged.
That example makes no sense to me because, while the GOP senate was acting despicably in refusing to hold hearings, they were probably not acting unconstitutionally.
In your example, SCOTUS is presumably ruling that the Senate is in fact acting unconstitutionally by refusing to hold hearings. If, in the face of the highest court telling them to do their job and uphold the constitution, they flat-out refuse, what then?
The analogy fails but let’s try to make it work:
Merrick Garland files the case and gets it heard by SCOTUS. SCOTUS rules, very surprisingly, that prolonged inaction on a nominee by the Senate is an unconstitutional act and instructs the Senate to either accept or reject the nominee within some designated reasonable period of time, or the court will interpret the Senate as in dereliction of their constitutional obligation and seat the nominee. Is it allowable for the Senate to disregard the SCOTUS ruling? If the Senate does disregard the rule of law as hypothetically determined by SCOTUS would SCOTUS then seating Garland be the proper response?
The rules as they currently exist do not allow for the legislature to act in an unconstitutional manner, with the determination of what is or is not unconstitutional by state law to be decided by the PA SC. (Bringing it back to the current scenario.)
In any case the state GOP is apparently expected to see if SCOTUS will hear it now. Any bets on whether or not they will? Let’s go with what I consider the very unlikely possibility that SCOTUS agrees to hear the case: given the dismissal of the stay request, the ruling stands and must be implemented until such time, if ever, that SCOTUS decides on the case in the GOP’s favor. By then the election is past and the next cycle is past the next census and another crack at redistricting anyway … and after their other gerrymander rulings.
I do not expect they will hear the case.
I think it’s a good example, myself. Let’s say SCOTUS said that hearings and a vote were required, and if the Senate did not do so, SCOTUS would appoint and/or confirm a person on their own. If the Senate refused to do have hearings or a vote, would that be an appropriate remedy in your opinion? I would say a strong argument would be that SCOTUS didn’t have the authority to make such a ruling, that their constitutional basis were flawed.
So what then? The question I would say is not justiciable, and it’s for voters to decide.
While I don’t think Alito refusing to grant an injunction is dispositive, I also believe it’s unlikely SCOTUS will step in. If that happens, it still would not b a ruling on the merits by SCOTUS.
The court assumed the power because someone has to. This is fundamentally no different than in Marbury vs. Madison, where the court assumed the power of judicial review. If the court cannot assume this power, then the system cannot work, and therefore the court can and must assume it.
This sort of thing isn’t inherently unusual: New nations are faced with all sorts of details that weren’t originally anticipated, and someone has to step up to the plate and figure out what precedent to set. It is a bit unusual that it’s happening so long after the founding of the nation, but that’s what happens when portions of the government take unprecedented actions.
But there isn’t enough time for North Carolina to comply with the Constitution this year.
Ok, play this out then. If Clinton wins in 2016, and the Senate were unchanged, if the Senate decided to hold out and not hold hearings or vote or confirm any new justice, would it be appropriate in your view for the court to assume this power - to appoint, confirm, and seat a new justice? I would say no, it’s an issue that’s not justiciable. As long as there are elections, the system can work.
Just to be clear, in your hypothetical the following things happen:
- The Supreme Court agrees to hear a case by one of any number of unconfirmed federal appointees. Remember that the Senate GOP was refusing to hold hearings on lots and lots of Obama nominations - not just Merrick Garland. The only difference with Garland was that his nomination was high profile enough to require justification on their part.
- The SC rules that the Senate is failing to uphold its constitutional obligations and orders them to hold hearings on all existing nominations.
- GOP leadership manages to convince the great majority of its senators to openly defy the ruling and tell the SC to pound sand.
- The SC says, “okay then, we’ll do it for you.”
Is that right? Because #1-3 are so enormously unlikely (even #3, even in the current political climate) that I can’t see how #4 isn’t a strawman.
What the Court could and should have done would be to tell the Senate that they were Constitutionally obligated to vote on whether to confirm a nominee, and that the Court would consider not holding a confirmation vote at all to be equivalent to confirmation, and then given the Senate some reasonable deadline to do so. There has to be some check on one branch of government unilaterally deciding to abandon their Constitutional obligations.
Or the court would consider not holding a hearing to be a rejection and thereby maintain the status quo and not provoke a Constitutional crisis. Gee, I wonder which way they’d decide?
Yeah, that’s a fair summation. Not a strawman though, since I’m not saying that’s anyone’s argument - it’s a hypothetical. The problem is these types of scenarios don’t happen often so there’s not too many real world examples to draw from. If you think there’s a better example I’m all ears. But here is why I think it’s roughly analogous to the enumeration you laid out:
[ol][li]PA Supreme Court agreed to hear the case. That’s good so far.[/li][li]PA Supreme Court did rule that the state legislature acted unconstitutionally, and ordered them to redo the district drawing, or they will do it for them. That’s still pretty close[/li][li]This one didn’t happen exactly. The PA legislature did end up submitting a redistricting plan, though it wasn’t subject to the full vote as it normally would be, and the plan was rejected by the governor. If the Governor’s assessment was accurate and consistent with what the PA Supreme Court would have thought, then that’s basically telling the SC to pound sand. If the legislature submitted the exact same districting plan it would have been more of an F U to the court, but they made a nominal effort at least.[/li][li]The PA Supreme Court actually did say they’d do it for them.[/li][/ol]
So given this, even though you think it’s far fetched, if #1-3 occurred as I and you laid out, would you think that #4 is appropriate course of action for the court?
Let’s say SCOTUS did do what you suggest, they tell the Senate that they are obligated to hold a vote, and if they didn’t, SCOTUS would construe that as confirmation. What would you think would happen if the Senate decided that this was an overstep by the court, and they didn’t have the authority to do that. The senate believed, consistent with the history of the country, that holding a vote was not an obligation they were operating under. Would you support SCOTUS installing a new judge on their own under these circumstances?
It’s not really them installing on their own, in that situation. In that situation, the president has nominated the person, and the senate has been given the opportunity to hold a vote to reject it.
It requires the affirmative action of one branch, and the refusal to follow court orders of another branch in order to that result. That’s not really “SCOTUS installing a new judge on their own”.
Okay. Assuming I suspend my disbelief about the premise, sure. If the SC rules it unconstitutional to refuse to hold confirmation hearings and the Senate still refuses to even hold votes? Sure. I’d be fine with them taking action as described above.
Look, we all know that incumbents in America are ludicrously safe. What is the incumbent reelection rate - 93%? We also know that, historically, Americans do not care whether their representatives are acting unconstitutionally if they happen to agree with the stance. If our hypothetical deep-red senators go back to their states saying, “I’m fighting the corrupt Supreme Court AND Hillary!” of course they’re going to get reelected. Look at Roy Moore’s level of support prior to the scandal.
But upholding the constitution isn’t the voters’ job and getting reelected does not excuse or justify unconstitutional behavior.
I no longer vote in Pennsylvania but my roots are there. I found this recent Wired article very fascinating - The Geeks Who Put a Stop to Pennsylvania’s Partisan Gerrymandering