The next President is almost certain to re-shape the Supreme Court. If it's Sec. Clinton, there is a strong likelihood we'll go back to the disastrous, Constitution-free Court of the Sixties, and will live under it for a long time. If Donald Trump becomes President, no one knows what to expect. One of many problems with Trump is that he'll say one thing in the morning and the opposite that afternoon. And while, in my opinion, it's likely his appointees would be notably better than Clinton's, you wouldn't be surprised with more selections like Justice Stevens and Justice Blackmun (or Earl Warren for that matter).
The Court with Justice Scalia on it was hanging by a thread, if that. The question now is what can be done to rescue the judicial branch from the unhappy fate that, from the present perspective, looks likely to befall it. (This is not to mention the fate awaiting the rest of the government, and the country).
I will not be the first to suggest that consideration be given to a third party. My candidate is FBI Director and former Deputy Attorney General James B. Comey.
I say this understanding what a long shot this is. Third parties have always failed in this country, and the numerous reasons behind their failure are present today in the same degree as always, if not more. It's next to impossible, for one thing, to match the money and organization the major parties can command.
For those, like me, who think the present choices are indigestable to a much greater degree than usual, the question is what to do. Given the country's anger and historically high dissatisfaction (evident both in numerous polls and in the sky-high, and earned, unpopularity of both Sec. Clinton and Mr. Trump), a third party has to be considered.
Its candidate would have to answer both the governing and political needs we now confront. It would be helpful to have a non-politician; a person of nationally recognized integrity; yet someone experienced at high levels of governance. Given the threat of terrorism and sharply rising violent crime, a person who has dealt with those issues would be very desirable. But someone identified with ideology or ideological thinking will not garner the popular support a third party candidate would need to win enough states to throw the election into the House (where Clinton would almost certainly lose, and Trump is earnestly disliked, to use a generous word).
Hence Jim Comey. He strikes me as David Patraeus without the problems. He is probably as well-known to and respected by the country as any non-ideological candidate would be, save perhaps Michael Bloomberg, who has said he won't run.
I don't know Comey well (although we were colleagues for several years and I consider him a friend), but I know him well enough to be certain that he would be a more capable and trustworthy President than either of the candidates we have now. He is smart, creative, independent and gutsy. He is politically aware (as one must be to get to the positions he's held), but he's not a politician. Not to be Boy Scoutish about it, he is also a patriot: He understands what an incredible force for good the United States has been in the world. He does not sweep the country's problems under the rug, but he's not obsessed with them, either. I believe he understands grievance/entitlement culture for the menace it is.
He won bi-partisan support for both Deputy Attorney General and FBI Director, with few if any dissenting votes in the Senate. I view him both as a man the country can embrace and the Washington "establishment" can work with.
Lastly -- to leave where I came in -- he has had an entire career to work with (and sometimes against) the judicial branch. For a few years, I was a comrade in those fights. He knows and cares about the difference between judges who live by their will, and those who live by the Constitution.
I don't know if Jim Comey is a down-the-line conservative, as I tend to be. I doubt it. I never talked politics with him. When we were Assistant US Attorneys together, politics was not the game. Law was the game. And law, together with the good instincts I came to know and trust, will guide him should he find himself at 1600 Pennsylvania Avenue.
Fuggitaboutit. No third-party candidate has come remotely close to winning, not even the extremely popular former President Teddy Roosevelt. The only thing TR did was split the vote to produce an electoral landslide for Woodrow Wilson. Ross Perot gave us Bill Clinton.
Like it or not, Trump is now the only possibility to avert the catastrophe of Hillary Clinton filling the Supreme Court vacancies for the next four or -- God forbid -- eight years.
I agree that Hillary must be defeated at all costs, because of the disaster the Supreme Court would become (to start with). Then there's the rampant dishonesty, lying galore, leaving our people to their gruesome fate in Libya after having refused increased security, making secure information available to our enemies (even without contributing to the Clinton Foundation), going all the way back to pork bellies in Arkansas. That's a very partial list.
My problem, and I'm far from the only one having it, will be going into the voting booth and pulling the lever for The Donald. I would be ashamed if my 12 year-old acted as he acts -- and I would correct it, too.
The problem, as a wise person remarked to me this week, is that the present choice is between a candidate whose stances are anti-American, and a candidate who will make pro-Americanism smell bad.
Yikes.
Comey would definitely have my vote and the votes of many other well-infomed people. But, as Kent states, he would, unfortunately, have 0 chance.
As for Trump. Despite his unpredictability, I believe that his Supreme Court nominee will be totally acceptable to people who want a Scalia-like jurist.
Trump might be catastrophe on many very important fronts. But I don't think the Court will tilt to the left in the unlikely event that he becomes President.
If Clinton is the odds-on favorite to win (a solid bed according to the prediction markets), and there is a significant risk that with Trump at the top of the ticket the Dems will take the Senate, the question becomes: Is Garland better than a Clinton nominee?
With respect to criminal justice issues, I believe Garland is palatable to many (if not most) persons who want the Court's balance to remain the same as with Scalia. In fact, based upon the recent Congressional Research Service report, Garland might be more aligned with the CJLF's postions on many criminal justice issues than was Scalia.
We have no better idea now, six months out from the election, whether Trump will win than we did six months ago whether he would win the nomination. Back then, the pollsters and prognosticators thought he would disappear.
Still, I take your point. The thing to do, given the exceptional degree of unpredictability that's in play with the electorate, is wait until Nov. 9 and see the lay of the land, both as to the White House and the Senate.
It would be a shame to hand the liberals Antonin Scalia's seat -- and with it, a SCOTUS majority on most major issues -- while there is still a realistic chance it won't be necessary, and that the country can get someone more likely to honor Scalia's legacy.
So the question becomes what are the odds that on Nov. 9 Clinton has won, the Dems have taken the Senate, and Obama withdraws Garland's name, thereby opening up the door (after Inaguration Day) for a nominee to the left (or far left) of Garland?
A lot of ifs. But a lot of potential downside. I am sure that there are people a lot smarter than me making this calculation.
"So the question becomes what are the odds that on Nov. 9 Clinton has won, the Dems have taken the Senate, and Obama withdraws Garland's name...."
(1) Likely; (2) Possible; and (3) Nearly zero, IMHO.
I agree with Kent's answer except for the first one. I would say:
(1) Unknown. Clinton has higher negatives than anyone who ever got elected, is rated as dishonest and untrustworthy even by Democrats, reeks of influence peddling (does anyone really think it's worth $250,000 a pop to hear her speak?), and is the definition of an establishment candidate in a year where that has been essentially the kiss of death.
In addition, much to my astonishment, Trump has been stronger all year than I ever expected. There have been a couple of recent, non-Republican polls (Ipsos and Quinnipiac) that have him statistically tied with Clinton.
I have a very hard time believing that he'll be elected, but then, I had a very hard time believing that anyone could even watch him on reality TV, much less think of him as a candidate for ANY public office. So I am not the best judge, to say the least.
(2) Depends to a degree on the Presidential outcome, which, as noted, is impossible for me to predict.
(3) Next to zero is correct. It would be an unbelievably rude slap in the face to Garland, who is a smart and decent man, and who would vote with the Democratic block with almost the same degree of frequency as anyone else a Democratic President would pick.
In addition, a filibuster still only takes 41 to succeed, and there is virtually no chance the Republicans will have less than 41 seats (they now have 54). Why would a Democrat provoke a filibuster when, by sticking with Garland, it can be avoided?
And in turn I will mostly agree with Bill.
"Likely" and "unknown" are not inconsistent. If I get two face cards at the blackjack table and the dealer's up-card is a 5, it is likely that I will win the hand, but it is not known.
However, as I noted in my April 1 post (not fooling), a Justice Garland would be more likely to side with the so-called "conservative" side more often on the two issues I consider most important -- national security and criminal law -- than most of the nominees we could expect from a Democratic president.
Justice Byron White was something like that. He was a dyed-in-the-wool Democrat, and he waited for President Clinton before he retired. Yet he was often on the right side in criminal law, and his replacement by Justice Ginsburg was a significant tilt in the Court that was not corrected until Justice Alito came on board.