Going with my gut reaction

Mark Levison, The Levison Group

I’m a big believer in my gut reactions. My mother, who just passed away last week, somehow instilled in me the idea that if I thought I was right, I should not be deterred from doing the right thing. Through the years, as I considered issues of right and wrong, I have generally relied upon my first reaction to act as a lighthouse in directing the path forward.

I am reminded of an opposing lawyer who once said to me, “You know, Mark, the first time I get a file, if I think it’s a loser, I write ‘DOG’ on the outside of the file jacket. That way, years later, when I am involved in the discovery and advocacy process, and all the wrangling we do for our clients, I will see that file jacket and remember my gut reaction.” Those were sage words. As lawyers, we fight very hard for our clients, and make every attempt to put their best foot forward in a case, but sometimes right is just right, and wrong is just wrong.

On a recent Saturday my wife Cheryl called me at work to give me the breaking news that Antonin Scalia, a man I was fortunate enough to meet, had unexpectedly died. My reaction was, “Well, President Obama gets to make another nomination to the high court.” Cheryl questioned whether that would be the case. I answered, “Whether there is a Republican or a Democrat in office, and no matter the long-term political ramifications for the court, the sitting president gets to make the nomination. That is how it is supposed to work.” Yet, virtually immediately Senate majority leader, Mitch McConnell told the president not to bother with his constitutional obligations because his nominee would go nowhere. So, what was that about?

Not the Constitution; it was about politics. As an attorney, I am particularly sensitive when self-serving politicians play politics with our United States Supreme Court. It’s happened before. The most egregious example was in 1937. Franklin Roosevelt didn’t like the court striking down portions of his New Deal programs, so he tried to “pack the court” by raising the number of justices from nine to fifteen, and introducing a retirement provision at age 70. That didn’t go too well for him. Senate Democrats joined with Republicans to strike down his court plan 70 to 22. Nevertheless, choosing an alternate route, FDR just stayed in office so long he got to pick virtually an entirely new Supreme Court, and spur on the 22nd Amendment to the Constitution, limiting the president to two elected terms.

Today, the Republican Party — the party not in charge of the Executive Branch — is trying to play fast and loose with our high court. It does not want the sitting president of the opposing party to be able to potentially shift the philosophical balance of that court. My gut tells me their position is wrong. Does that mean the Democrats are the good guys and the Republicans are the bad guys? Not at all. In today’s political climate, if the positions were reversed, there is evidence the Democrats and Republicans would be switching arguments.

The current presidential race has made one thing quite clear. Most citizens are unhappy with the politicians currently running our political process. Some of these politicians say they have heard the complaints, yet they haven’t stopped the insanity. In fact, the recent presidential debates remind me of the words of America’s great satirist, Mark Twain, who warned, “Never argue with a fool, onlookers may not be able to tell the difference.” In a new low, during the 11th Republican presidential debate, the “best” Republican candidates, culled from the original seventeen to the presumed final four, debated issues surrounding presidential genitalia.

Trump rejected Rubio’s indication that his allegedly small hands correlated to an insignificant endowment in an area that truly could only matter to those macho candidates and perhaps to their partners. Presidential candidate Rubio, the morning after, denied he was taking a pot shot at Trump’s masculine attributes. Rubio was plainly not leveling with the public when he denied implying what he had unarguably implied. But then, disclaimers like that seem to be going around the political field everywhere these days. We even have a former aide to Secretary Clinton being granted immunity to testify about the email issues nipping at the heels of the Democrats’ leading candidate. There seems to be a general consensus that our current group of political leaders leave something to be desired.

The bottom line is, maybe the politicians can’t help themselves, but please, stay out of our Supreme Court. My gut tells me that a president who has almost a year remaining in the term he was elected to by the citizens of our country must do his job and put forward a nominee to fulfill a vacancy on the high court, and that the Senate must give that nominee a fair hearing and an up or down vote. To suggest that process should not be followed is like suggesting Senators in the last years of their sixth year terms, or even Representatives in the second years of their two year terms, have less responsibility for fulfilling their elected duties than they had earlier in their terms. My gut tells me that is nonsense. Senator McConnell: write “DOG” on that argument.


Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.
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