Short-handed Supreme Court missing calls

Posted 4/26/16

“It’s my job to call balls and strikes,” John Roberts told a Senate committee at his confirmation hearings to become chief justice of the U.S. Supreme Court.

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Short-handed Supreme Court missing calls

Posted

“It’s my job to call balls and strikes,” John Roberts told a Senate committee at his confirmation hearings to become chief justice of the U.S. Supreme Court.

But when the umpires are short-handed, they miss calls. And with the death of conservative heavyweight Antonin Scalia, that already is happening. The Senate should stop making political sport of the nation’s highest court and move ahead with the process to replace Scalia. Instead, the court’s eight justices face the prospect of 4-4 deadlocks on a variety of contentious cases, including several arising from Wisconsin.

Unfortunately, this crew may be working short for a while: Senate Majority Leader Mitch McConnell of Kentucky is adamant that only the next president should nominate a replacement. Facing the loss of a conservative majority on the court, McConnell has held firm. But understanding McConnell’s political motivation doesn’t make his decision to paralyze the court any less reprehensible.

The court split 4-4 last month in a challenge brought by California teachers who claimed their right to free expression was violated when they were forced to pay union dues to the state’s teachers union. Had Scalia survived, it’s likely the court would have overturned a 1977 precedent and gotten rid of such “agency fees.” Instead, the court deadlocked, upholding an appeals court decision.

There likely will be more examples of justice deferred.The challenge to Wisconsin’s legislative maps is one. The maps were drawn by Republican lawmakers in 2011 after they took control of state government. Legislators are required to redraw the maps once a decade to account for shifts in population, and that necessity — and the Republican sweep in the 2010 elections — ensured that GOP leaders could gerrymander their party into a formidable majority for years to come.

Wisconsin Democrats argue that the GOP’s mapmaking was improper. But while the Supreme Court has ruled in the past that maps can be so partisan that they violate voters’ rights, the justices have not agreed on a standard to determine that. The Democrats are proposing one. A panel of three federal judges ruled earlier this month that they would decide the matter after a trial in May. Any appeal would go directly to the Supreme Court, where a deadlock could leave the panel’s ruling in place.

Other Wisconsin cases that could reach a deadlocked court include a challenge to the state’s voter ID law and a requirement that physicians who provide abortions have admitting privileges at a hospital within 30 miles of where they perform the procedure.

There is a solution: Hold hearings and take a vote on Obama’s nominee, Judge Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit. McConnell has claimed Garland would move the court “dramatically to the left.” But Garland is a judicial moderate with a long and distinguished record. As McConnell well knows, hearings would expose this fact. The Senate approved Garland’s elevation to the D.C. Circuit 76 to 23 in 1997.

Sen. Mark Kirk, a Republican from Illinois, says senators should just “man up” and take a vote on Obama’s nominee. We agree. Johnson should follow Kirk’s lead.

Let the umpires get back to the game at full strength.

— The Milwaukee Journal Sentinel