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Rounds Rebuts Rottenly, Undermines 14th Amendment with Supreme Court Balk

Mike Rounds
Senator Mike Rounds, more interested in gold watches than in gold standards for the Supreme court.

Last Sunday, my local paper called Senator Mike Rounds “silly” for refusing to do his job and consider President Barack Obama’s nominee for the Supreme Court, Merrick Garland. This morning, my local paper gives Senator Rounds a chance to respond. He does so, but poorly.

Most of our junior Senator’s response repeats verbatim his blah-de-blah March 16 response to the Garland nomination, to which the Aberdeen American News pretty effectively responded in their March 20 editorial. He enunciates no new scholarly analysis of why losses of Congressional seats in a mid-term election at all end a President’s authority to make and the Senate’s obligation (not option) to act on Supreme Court nominations.

Rounds rebuts and extends only one point raised by the AAN, their comparison of his claim that the President should not be allowed to fill Supreme Court vacancies in his last year in office with the logical conclusion therefrom that a last-year President should not be allowed to make other decisions with long-lasting impact, like going to war.

The editorial board is also correct that some important decisions may have to be made by President Obama over the course of his remaining 10 months in office. But the confirmation of a Supreme Court justice — who will be serving a lifetime appointment with the potential to have significant influence over the ideological direction of the court for a generation — is not the same as a significant matter of national security that may require presidential action. Further, even Supreme Court Justice Stephen Breyer, a left-leaning justice, acknowledged that an eight-member Supreme Court won’t paralyze the court’s ability to resolve cases. “We’ll miss him,” said Breyer, “but we’ll do our work” [Senator Marion Michael Rounds, op-ed, Aberdeen American News, 2016.03.25].

Funny that Senator Rounds would cite Justice Breyer’s good-soldier statement that the Court will do its work as justification for the Senate not to do its work. Justice Breyer said that about half of the Court’s decisions are unanimous but that about 20% are 5–4 decisions. That’s 20% of decisions where the Court could be paralyzed… or functioning suboptimally. Recall what happens when the Supreme Court ties:

A 4-to-4 deadlock leaves the lower court’s decision in the case intact and binding on the immediate parties without setting a national precedent, essentially as though the Supreme Court had not agreed to review the case at all.

One of the Court’s functions is to establish uniformity of Federal law across the country by resolving conflicts between decisions of different lower courts.

That function is impeded when the Court deadlocks 4 to 4, a situation that can also occur when a justice disqualifies himself because of a conflict of interest. Any conflicts on the legal issues among lower court rulings in different cases are left unresolved until another case raising similar issues come along [Stuart Taylor, Jr., “Tie Vote: What Happens,” New York Times, 1987.10.05].

That may not be a national crisis, as Taylor points out, but tie decisions from the Supreme Court can create patchwork applications of the Affordable Care Act and other important laws, leaving Americans in different states with different rights:

If the Senate does not act on the nomination of Merrick Garland to the Supreme Court, Biden said, the Senate risks moving its own dysfunction onto the nation’s highest court.

Eight justices, when evenly divided, will not be able to resolve many of the nation’s pressing legal issues for more than a year, he said. And the rights of individuals will be determined, not by the Supreme Court for the nation as a whole, but by the lower regional courts and the geographical happenstance of where people live [Nina Totenberg, “Joe Biden Criticizes Senate Refusal To Consider Obama Supreme Court Nominee,” NPR: All Things Considered, 2016.03.24].

Leaving a Supreme Court vacancy unfilled opens the door to unequal treatment under the law. In other words, while professing to honor the departed Justice Scalia’s strong defense of the Constitution, Senator Rounds is undermining the 14th Amendment that ensures the equal application of that Constitution to every citizen of every state.

On AAN’s war argument, Senator Rounds is correct that filling Supreme Court vacancies is not the same as handling national security, but Supreme Court appointments and national security actions are both, in AAN’s words, “hard, long-lasting decisions” that can’t be “kicked down the road.” Senator Rounds offers no criterion for why those decisions are different or why Presidential action during an election year on one is allowable while action on the other is not. In other words, Rounds does not rebut the editors’ claim.

At least we know Senator Rounds is sensitive to criticism from home. Instead of weak and specious arguments, he should respond to that criticism with a change of heart, put performance of partisanship, and act as quickly as possible to restore the Supreme Court and the 14th Amendment to full strength.


  1. Douglas Wiken 2016-03-25 12:20

    Rounds is just a conduit for wingnut right trash. It is an interesting time when George Will even skewers the GOP for partisan folly and fraud of the kind purveyed by our insurance agent in Congress.

  2. Daryl Root 2016-03-25 12:36

    I agree up until the 14th Amendment line. Equality is not being effected as lower court rulings will still apply in case of a tie. One can’t guarantee how the deciding vote would have been cast.

  3. mike from iowa 2016-03-25 12:58

    With Scalia as the deciding vote,it was pretty obvious where his loyalties were bought and paid for.

    I doubt Scalia or Thomas ever saw a conflict of interest they couldn’t ignore. Baffles the mind to see how a justice with clear conflicts can self-determine impartiality.

    and remember,the so called Biden rules were invoked when there was no vacancy on the court and no candidate to consider. Biden said any candidate(theoretically) would have been considered the day after the election,not after the next Potus is inaugurated. Can anyone find a situation where the Potus’ choice was not considered in an election year?

  4. Robin Friday 2016-03-25 14:02

    “We’ll miss him,” said Breyer, “but we’ll do our work” [Senator Marion Michael Rounds, op-ed, Aberdeen American News, 2016.03.25]. And the U.S. Senate, individually and collectively, should darn well do theirs, and leave the partisan game-playing behind.

  5. caheidelberger Post author | 2016-03-25 19:02

    Daryl, you’re right that I can’t guarantee how the deciding vote will go. But a full nine-member panel guarantees that the vote will go one way or the other and that the Court will present a majority opinion that will set unifying precedent for all jurisdictions, thus guaranteeing that whatever law is in question will be applied equally nationwide. The 4-4 tie leaves the possibility that folks in South Dakota will have a right while folks in Michigan will not have that right. At full strength, the Supreme Court guarantees that either that right exists in all states or none.

  6. caheidelberger Post author | 2016-03-25 19:04

    They haven’t found such a supporting example yet, have they, Mike?

  7. Mark Winegar 2016-03-25 19:25

    Having recently reread the Constitution I can only surmise that Senator Rounds has no interest in doing his job. Therefore, it is incumbent upon us to make sure he doesn’t get rehired.

  8. Don Coyote 2016-03-25 20:54

    “But as I see it, Mr. President, the cost of such a result, the need to re-argue three or four cases that will divide the justices four to four are quite minor compared to the cost that a nominee, the president, the senate, and the nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks.”

    so said Senator Joe “Krazy Eyes” Biden – 1992

  9. leslie 2016-03-25 21:29

    “The first bill that President Obama signed into law was the Lilly Ledbetter Fair Pay Act. I think it says something about his priorities that the first bill he put his name on has my name on it too. As he said that day with me by his side, ‘Making our economy work means making sure it works for everyone.’

    We sought justice because equal pay for equal work is an American value. That fight took me ten years. It took me all the way to the Supreme Court. And, in a 5-4 decision, they stood on the side of those who shortchanged my pay, my overtime, and my retirement just because I am a woman.” wiki

  10. Darin Larson 2016-03-25 21:33

    Don Coyote- you left out some important details- imagine that.

    Biden’s speech was in June of 1992, not February as in Scalia’s case. Biden’s speech was also a hypothetical situation and was never used in practice.

    “Officials at the White House and on Capitol Hill noted that Mr. Biden had also said in the 1992 speech that he would support a future Supreme Court nominee by Mr. Bush as long as the president consulted with the Senate OR CHOSE A MODERATE. Mr. Biden made that observation as he discussed how the confirmation process could be changed “in the next administration,” should he remain as chairman.” NY Times Feb. 22 (EMPHASIS ADDED)

    And when has Joe Biden’s thoughts been the gospel accepted by the Republican party? Do Joe Biden’s thoughts overrule the Constitution now? Good to know.

  11. mike from iowa 2016-03-26 06:38

    I haven’t heard of one,yet,Cory. This is interesting and something I hadn’t seen before:

    There’s an informal Senate rule that came out of the Fortas fight that Republicans will likely claim applies here. That’s the “Thurmond rule,” named after former Sen. Strom Thurmond (R-S.C.), which, in the words of my colleague Ryan Grim, means “no lifetime judicial appointments would move in the last six months or so of a lame-duck presidency.” Obama has more than six months left in his tenure, but remember, this is an informal rule — it’s not written down anywhere.

    Fortas was nominated for Chief Justice in LBJ’s final year and rejected,but he was already in the court.

  12. Bobby Kolbe 2016-03-26 08:44

    It is interesting which one did we elect

    Mickey the Mimic
    Senator Rounds
    He is making the choice. It is not difficult to see which one,is it.

  13. jake 2016-03-26 08:45

    Thune, Rounds, Noem and others of their ilk will ‘make up’ any ‘rule’ or idea that suits them at the time to do whatever. The Constitution? Only matters when you want it to matter and doesn’t seem to pertain to them having any thoughts about their job responsibilities under it. Under the Constitution Senators can’t be impeached fr not doing their jobs, can they?

  14. Dave L. 2016-03-26 08:55

    Give the nominee a hearing. If you don’t like him, vote no and force another nomination. It’s happened in the past. But he should get a hearing and a vote. Not doing so sets a lifelong bad precedence in my opinion. I’m on the fence about how effective this President has been overall, but he is doing what’s required of him in this instance and the senate should as well even if it’s a no vote.

  15. Paladn 2016-03-26 09:07

    Mark Winegar: I appreciate your research; however, I believe you make a serious unsupported assumption — that the majority of persons of South Dakota voting will care about the conclusions you present. Remember, Mr. Rounds has an “R” prior to last name and in the party description following his name on the ballot.

  16. caheidelberger Post author | 2016-03-26 09:23

    Jake, I think only the Senate can remove sitting Senators outside of a general election.

    Paladn, you’re right about a certain percentage of the electorate. But we can reduce that percentage by getting more people who do care about Winegar’s research to come vote!

  17. mike from iowa 2016-03-26 11:26

    Considering the circumstances surrounding Obama and the murderous disposition of enemies aligned against him, Obama has done an exceptional job of driving America forward and will be judged as a very good President,if not one of the best,ever. Wingnuts will have to live with their shameful, shoddy disrespect of Obama forever.

  18. mike from iowa 2016-03-26 11:36

    Senate can vote to expel members-for wrong doing,but,in South Dakota’s case-Daugaard would be allowed to replace that one with another of the same stripe. In Daschle’s case,had he stepped down to run for Potus, his Dem seat would have been given to Thune.(most likely)

  19. mike from iowa 2016-03-26 12:05

    But a full nine-member panel guarantees that the vote will go one way or the other and that the Court will present a majority opinion that will set unifying precedent for all jurisdictions, thus guaranteeing that whatever law is in question will be applied equally nationwide.

    In a perfect world…….maybe. These are trying times we live in. Wingnuts in red states are trying to convince themselves and their constituents that state law trumps federal law and decisions handed down by the Scotus don’t make them applicable as constitutional.

  20. caheidelberger Post author | 2016-03-26 13:46

    Mike, I know we have to keep fighting battles over new laws in each state. But a full-strength court removes one opportunity for unequal application of the law. No one vote solves everything, but every good decision can solve something.

  21. mike from iowa 2016-03-26 14:09

    I agree 100% about a fully loaded court. Grassley is afraid the court will tilt to the left for the first time in a long time. He did not want to fill the DC circuit court of appeals for that same reason. I’m sure he doesn’t want to see America become a minority majority world in his lifetime,either.

  22. Darin Larson 2016-03-26 14:45

    Mike– and not only that state law trumps federal law, but God’s law trumps federal law in the case of Stace Nelson and the 2nd Amendment. Stace has got to be comforted by the fact they got that RINO Scalia out of the way, so maybe SCOTUS can recognize that there are no limits on the right to bear arms in future decisions. Maybe Stace can consult with those who espouse Sharia law on how to get that done?

  23. mike from iowa 2016-03-26 14:52

    Darin-Ronnie Raygun and his henchmen were the first to espouse god’s law is higher than US law-at least to the best of my memory. Ollie North and Fawn Hall both used that defense after secreting Iran-Contra documents out of government possession and shredding them. Guess I’m getting way off subject somemore. My apologies.

    I am not that familiar with Mr Nelson’s views.

  24. leslie 2016-03-26 14:54

    hmm, what will be the nuclear option the republicans draw in the sand next time, next time, next time???

  25. Darin Larson 2016-03-26 15:05

    Mike–the funny thing to me is that even as revered as Reagan is among Republicans, people like Stace would call Reagan a RINO. Look up the debate between Reagan and Bush in 1980 and they were falling all over themselves to pander to undocumented workers and their families. Compare that to the current debate where Rubio had to retreat from the path to citizenship. It is clear the Republican party has moved to the far right.

  26. mike from iowa 2016-03-26 15:35

    Ronnie was a Democrat but changed his spots to skunk stripes so he could be mean to people on welfare,except the wealthy,of course. I’m all for bringing back Raygun,Nixon and Ford and then impeaching them and the Bush bums for crimes against humanity too numerous to mention, in different decades and different theaters.

  27. Roger Elgersma 2016-03-27 10:45

    Anyone in high position that thinks that others in high position are automatically acting in the best interest of the remainder of their term rather than in the best interest of the nation long term simply does not have the right perspective on having that position that they have. If he is just using this excuse to promote his own position is still a bad position since people learn from leaders attitudes and he is not teaching a good attitude by using a wrong reason for whatever he is for.

  28. leslie 2016-05-12 23:32

    in Buckley v. Valeo the supreme Court was asked to evaluate the constitutionality of the Federal Election Campaign Act of 1974….Defenders of the law argued that regulating political spending was necessary to prevent corruption and promote voter confidence, as well as to equalize the ability of interested citizens to influence electoral choices and run for office. The Buckley Court agreed that preventing corruption or its appearance was a compelling government interest, which justified an incursion on First Amendment rights. However, the Court flatly rejected any government interest in promoting political equality, stating that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. . . .”

    Buckley’s rejection of the equality interest was immediately and widely criticized. As time passed…reformers (and scholars) focused their energies on arguing for a broad understanding of the government’s interest in preventing corruption. In the 1990s and early 2000s, this seemed like a winning strategy. The Court upheld a variety of contribution limits, often describing the government’s corruption interest broadly in terms of the dangers that wealth could pose to the integrity of the democratic process.

    Then Roberts and Alito replaced O’Connor and Rehnquist, and the newly constituted Court began a concerted effort to dismantle the system of campaign finance regulation by narrowing the government’s interest in preventing corruption to the quid pro quo exchange of cash for votes.

    While the last forty years have given scholars of election law every reason to succumb to “corruption temptation,” changes both on the ground and in the Court have created a rare moment in which a fundamental rethinking of the rules of our democracy is possible.

    Brennen center for justice 5.16

  29. leslie 2016-05-12 23:35

    The current Supreme Court is notorious for planting language they harvest later to loosen campaign finance laws. A new Justice could change that. id.

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