Without evidence of benefit, an intervention should not be presumed to be beneficial or safe.

- Rogue Medic

Who would have thought that a vacancy on the Supreme Court would produce so much unintentional comedy

 

First the facts. On the night/morning of February 12-13, 2016, Justice Antonin Scalia died of apparently natural causes. This is not really off topic, since this points out the ways that rules are made and politics can come into play in the masking of rules, protocols, and guidelines.
 

Antonin_Scalia,_SCOTUS_photo_portrait
 

Average life expectancy for an American male is about 79 years. Justice Scalia died about a month before his 80th birthday. Justice Scalia is reported to have health problems, which may have contributed to his death. Is it unusual for a medical examiner to pronounce death over the phone? No. There may be many variations from state to state, but working as a paramedic, as long as the circumstances are not suspicious, pronouncing death is done over the phone and arrangements are often made for the body to go to a funeral home.

Ruth Bader Ginsburg is 82 and her birthday is also next month. She may die soon or she may live another 20+ years. It will probably be something between the two, but we do not know where it will be on that range. Doctors do not exist to predict when someone will die. Doctors are supposed to provide appropriate treatment with the consent of the patient, or the person with power of attorney for the patient.

Justice Scalia was not in the best of health, but nobody appears to have been predicting that he would die right now. On the other hand, nobody should be surprised that a man of his age, with his health problems, died suddenly in his sleep. If you ask young people if they would like to die in their sleep outside of a hospital, at about 80, after living an active and successful life, would it be surprising if many said, Yes.? Justice Scalia was very fortunate.

President Obama was discouraged from making an appointment to replace Justice Scalia, because it is unusual for a Supreme Court Justice to die in the last year of either term of a presidency (an election year). It is unusual for a Supreme Court Justice to die during any year of a presidential term. Most of the time a Supreme Court Justice will retire and will try to arrange to step down without the political hubbub of an election year.

Many opposed to President Obama have stated that he should not nominate anyone to replace Justice Scalia. It seems they do not considered it important to fill a vacancy on the Supreme Court for over a year.

Some have suggested that it is a tradition to delay nominations in the last year of a presidency, but where is the evidence to support this revolutionary approach to Supreme Court nominations? Has this tradition ever happened? What is an unprecedented tradition?

What about the original intent of the Founding Fathers? The Constitution does not have any wording to support a delay in nominating someone.
 

He (The President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.[1]

 

George Washington, nominated and appointed two Supreme Court Justices in his last full year in office. President Washington’s second term ended March 4, 1797.
 

President George Washington nominated (Samuel) Chase to the Supreme Court of the United States on January 26, 1796, and the Senate confirmed the appointment the following day.[2]

 

Followed by –
 

On March 3, 1796, Ellsworth was nominated by President George Washington to be Chief Justice of the United States, the seat having been vacated by John Jay. (Jay’s replacement, John Rutledge, had been rejected by the Senate the previous December, and Washington’s next nominee, William Cushing, had declined the office in February.) The following day, Ellsworth was unanimously confirmed by the United States Senate, and received his commission.[3]

 

Should we condemn the actions of President Washington as not reflecting original intent?

President Washington was succeeded by President John Adams, who nominated and appointed John Marshall with less than a month and a half to go in his term. President John Adams was also one of the Founding Fathers and George Washington’s choice for a successor. Should we condemn his nomination and appointment as contrary to original intent?
 

As the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams first offered the seat to ex-Chief Justice John Jay, who declined on the grounds that the Court lacked “energy, weight, and dignity.”[31] Jay’s letter arrived on January 20, 1801, and as there was precious little time left, Adams surprised Marshall, who was with him at the time and able to accept the nomination immediately.[32] The Senate at first delayed, hoping that Adams would make a different choice, such as promoting Justice William Paterson of New Jersey. According to New Jersey Senator Jonathan Dayton, the Senate finally relented “lest another not so qualified, and more disgusting to the Bench, should be substituted, and because it appeared that this gentleman [Marshall] was not privy to his own nomination”.[33] Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31, 1801.[4]

 

Those who support President Obama have pointed out that the nomination of Justice Anthony Kennedy was made in the final year of President Reagan’s term, but that was to fill a vacancy due to a retirement over a year and a half before the end of President Reagan’s term. Still, that did not stop President Reagan from continuing to nominate candidates until one was appointed.
 

On November 11, 1987, Kennedy was nominated to the Supreme Court seat vacated by Lewis F. Powell, Jr., who announced his retirement in late June.[11] His nomination came after Reagan’s failed nominations of Robert Bork, who was nominated in July but rejected by the Senate on October 23,[12] and Douglas Ginsburg,[13][14] who withdrew his name from consideration on November 7 after admitting to marijuana use.[15] Kennedy was then subjected to an unprecedentedly thorough investigation of his background, which he easily passed.[5]

 

Those are the facts.
 

Suppose President Reagan had six months left in his second term and a vacancy developed on the Supreme Court. Should President Reagan have left that nomination for the winner of the next election? Nobody yet knew who would win the election. The choice between Vice President George H. W. Bush and Governor Michael Dukakis of Massachusetts would be half a year away and that is plenty of time for some unexpected news to affect the outcome of the election.

What would President Reagan do? What would President Bush (41) do? What would President Clinton do? What would President Bush (43) do?

While we can only speculate about what someone would do, there does not appear to be any reason to suspect that any American president would refuse to nominate someone under the same circumstances.

Please let me know if you are aware of any cases of any refusal to nominate a candidate to fill a vacancy on the Supreme Court.

What I expect to happen is that the process will be dragged out and eventually there will be a vote along party lines to reject the candidate. I would expect the same thing if the parties were reversed (the president Republican and Enough Democrats in the Senate to reject a candidate). The Constitution does not require the Senate to be reasonable. The Constitution and Bill of Rights were written because the Founding Fathers expect politicians to be unreasonable. The debate over this is nothing new.
 

The Supreme Court has become more polarized and the nomination process may have become even more polarized than the Court. Even Justice Scalia has stated that he would not expect to be approved in the current environment

How could the president use that understanding of politics in his favor?

1. Nominate someone who has a history of moderate in views, rather than liberal views.

2. Point out that the Senate is willing trying to keep the seat vacant for a year.

3. Frequently remind the eight justices, through others, that they are the full Court for the next year.

4. Remind the voters that the nomination is moderate, demonstrating that the opposition to the nomination is not moderate.

5. Use the Federalist Papers, and other writings of the Founding Fathers, to show that the original intent was never to support the rights of factions at the expense of individual rights.

6. Appealing to the judgment of the people who are appointed for their judgment is a way around the politics, but only if the nomination is not political.

Our next president will be just another politician, pandering to the polarized views that have been encouraged by the political propaganda of MSNBC, CNN, and Fox News. This is an opportunity to set an example of doing what is better, rather than what is political. Eventually America will move away from our current temporary infatuation with extremes.
 

How does that relate to making laws, protocols, or guidelines in EMS?

There are powerful people in EMS. Some understand and pay attention to evidence, while others put aside reason and are suckers for anecdotes. Some can be persuaded with evidence. Some will find excuses to reject evidence. By addressing those who are respected and can convince those driven by emotion, more can be accomplished.

Ask permission to forward a PDF, or a link to the full text, of a paper that supports your position. Mention that you are interested in their opinion of the paper. Maybe some of them will read the papers. Maybe some of those who do not read the papers (we don’t have enough time to read everything we should) will feel guilty about not reading it and go along out of guilt. Follow up by asking what they thought of the paper.

While it is disappointing to encounter a broad lack of familiarity with the relevant research, this is an opportunity to provide objective information, which should persuade most reasonable people. Repeat as often as necessary. Most unreasonable people find it difficult to remain unreasonable when presented with valid objective evidence.

Footnotes:

[1] Article II Section 2
U.S. Constitution
Transcript

[2] Samuel Chase
FindLaw
Supreme Court Center
Supreme Court Justices
Article

[3] The Ellsworth Court and later life
Oliver Ellsworth
Wikipedia
Article

[4] Nomination
John Marshall
Chief Justice (1801 to 1835)
Wikipedia
Article

[5] Appointment to Supreme Court
Anthony Kennedy
Wikipedia
Article

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