There seems to be a lot of readiness among the Dems in Washington for the fight over filling the Supreme Court vacancy. I'm having trouble seeing this battle clearly. One part of the picture in particular perplexes me.
Senator Cory Booker was on TV last night, making major assertions concerning the wrongness of Trump appointing someone to the Court while he and his campaign are under criminal investigation and important questions that bear upon that investigation might come before the Court.
(For example: 1) on whether the President is obliged to obey a subpoena, or 2) whether the President can be indicted while still in office.)
I get that. But what I don't get is whether the person who is appointed to replace Justice Kennedy will make any difference in how such matters get decided.
If Cory Booker's argument prevailed, and the seat was kept empty until the investigation -- and any Court cases growing out of it -- had been resolved, there would be eight justices. Which means that those cases would either command a majority of at least 5-3, or the Court would deadlock at 4-4.
If it was a 5-3 (or larger) majority, the new justice would not have changed the outcome. But what about if it were 4-4? Would that deadlock help or hurt the cause of making sure that Trump cannot put himself above the law?
That depends on another question, the answer to which I don't know: Would such questions as on the subpoena or indicting a sitting President go STRAIGHT TO THE SUPREME COURT? Or would they be heard first in lower courts.
If they go straight to the Supreme Court, it seems to me that a 4-4 decision would help Trump. My thinking may be off, but in the absence of a decision from the Court, it would seem to me that at least the subpoena issue would leave Trump free to do as he wished: in the absence of an order from the highest Court, such as Nixon received, Trump would not be under legal obligation to defer to Mueller/Justice on the matter. (Would that apply also to the question of whether he could be indicted?)
But the matter would be different if the Supreme Court gets these matters after some lower court would rule on those cases. In THAT case, a 4-4 deadlock would mean that the lower Court's decision stands (I think). And it is THAT scenario -- and I think only that scenario -- that would make Booker's argument matter.
In other words, a deadlocked Supreme Court is better than a 5-4 conservative majority regarding the Mueller investigation only if that means that a lower court -- having first ruled on the matter -- would be where the case is decided, with the Supreme Court evenly split and thus rendered impotent.
So the question: Do such cases go directly to the Supreme Court? If they do, Booker's argument might be irrelevant. (Though it might serve a useful POLITICAL purpose in calling attention to Trump's position as a possible criminal who has been trying to use his presidential powers to put himself beyond the reach of the law.)
I note two things from the precedent of the U.S. v. Nixon.
First, in that case, there WAS a lower court order-- from the famous Judge John Sirica-- for Nixon to hand over the subpoenaed tapes. But if I recall, Sirica was already involved in the hearing of the Watergate matters, so he was already in the picture-- and I'm not aware of any lower court that would be similarly involved if Mueller were to get the grand jury to issue a subpoena for Trump to testify.
Second, the case of U.S. v. Nixon was decided unanimously, which the justices believed was of importance in such a case involving the President. (Though apparently only eight justices were party to the decision-- I'm not sure why Justice Rehnquist was not. He was not the only Nixon appointee on the Court at the time.)
It would be a wonderful thing if we could assume that the Court would be as committed to the rule of law now as it was in 1974, and that the case against Trump's stonewalling -- which is, if anything, more compelling than that against Nixon -- would likewise result in a unanimous decision. But it has become more difficult to think of the conservative justices on the Court now as principled judges, rather than as Republican partisans in robes, and so I am unable to make any such assumption.
But if the Court were to be similarly principled now, in a case involving Trump's refusing to comply with a subpoena, then the worst a newly appointed justice could do is cast a dissenting vote against a majority against Trump.
So does Senator Booker's argument make more legal (as opposed to political) sense than I am seeing?
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At the moment, I'm having a hard time seeing how the Democrats can achieve anything regarding the fight over the future of the Court -- as opposed to a campaign issue, or other political uses -- in this battle over the appointment of a new justice. They'll not be able to pin any potential appointee down on Roe v Wade-- will they? Or anything else.
(The nominees always refused to express anything substantive-- on very dubious grounds, in my opinion, but they get away with it. Remember that John Roberts would just "call balls and strikes"?)
If it were possible to block ANY appointee until Trump is no longer President, THAT would be a beneficial outcome. (Though I don't like that further damage to the constitutional process, Mitch McConnell and his Republican accomplices were the ones who declared war.) But will the Dems have the power to do that, even if they were to choose to?
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