Monday, February 15, 2016

One funeral at a time

My friend and debate partner has used the phrase, "Society progresses one funeral at a time." He decided to check the source of that phrase. He didn't find anything, though he did find that Max Plank had said, "Science progresses one funeral at a time." So my friend declares authorship of the phrase "Society..."

This bit of research was prompted by the death of Justice Antonin Scalia. My friend wrote, "He did tremendous damage to our society and intended to do more. One down, three to go."

My friend had used his phrase to describe the progress of LGBT rights. The elderly, who have a higher tendency of viewing gays and lesbians in negative terms, die off and are replaced by younger voters, who wonder what all the fuss was about.

But I must debate one part of what my friend said. I doubt there are only "three to go." A President Trump, Cruz, or Rubio will gladly refresh the supply of bigoted justices. We'll have to go through many more funerals because Cruz and Rubio are still quite young.

Yesterday I wrote that Timothy Lee of Vox lists fourteen justices who were nominated in an election year. Jim Burroway of Box Turtle Bulletin provides details.

Burroway's list includes Howell Edmunds Jackson. During Franklin Roosevelt's time as president the 20th Amendment changed inauguration date from March 4 to January 20. In November of 1892 Benjamin Harrison lost his bid for re-election. Even so, on February 2, 1893 Harrison nominated Jackson to the Court after Justice Lamar died that January. Harrison, a Republican, knew the new Senate would be controlled by Democrats, so nominated a Democrat.

So even lame-duck presidents nominate justices and get them confirmed. Though I wouldn't want Obama to nominate a conservative, just to get that person through the Senate.

Burroway also mentions six times a justice left the court in an election year and the seat went unfilled until after the election. In June of 1968 Chief Justice Earl Warren retired. Abe Fortas was an associate justice and Lyndon Johnson nominated him for the top job. But Fortas has sketchy ethics and his confirmation was filibustered. The scandal grew and Fortas resigned in May 14, 1969. Now there were two openings on the court. One was filled when Nixon nominated Warren Burger for Chief Justice, who took office on June 23, 1969 (that seat had been empty for a year). That second seat was open for another year before being filled by Harry Blackmun on June 9, 1970.

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