• Josh

Clickbait Stupidity & The Supreme Court


First thing's first; I voted today!


I love "going to the polls." I do walk-in voting. There's just something so satisfying about standing in the booth, surrounded by others fulfilling their civiv duty just like me. I enjoy that.


Anyway, on to two news stories that piqued by interest today.


The first is one with the headline, "Breaking: Megyn Kelly is Supporting Hillary Clinton For President, Civil War At Fox News." I've never heard of this news site before, but the headline was provocative enough for me to check it out. Here's the bit that bothers me:

Megyn Kelly and Trump have a long history of hating each other – and it’s obvious that by denouncing Trump in everything she does, it’s de facto support of Hillary Clinton, simply by default. By attacking Donald Trump on her show, she is directly supporting Hillary, either way you look at it.

It's that simple?


This version of the story strikes me as "click-bait." I find it poorly written, and even more poorly conceived. The only thing that's "obvious" to me is that she's disturbed by Trump and his candidacy, both as a conservative and as a woman.


That the mainstream news media has treated this campaign as a circus, or a school yard fight, is a travesty. But now that Trump is so close to stepping into the White House, pretty much everyone with any sense (or moral compass) is freaking out.


And that's all I've seen in the handful of video clips of Megyn Kelly's coverage of Trump. She's been challenging Trump's credibility and practicality as the GOP nominee. That, to me, doesn't equate to support of Clinton.


What it is, is the smallest sign of a "journalist" doing her fucking job. It is the news media's job to be critical, to challenge standing assumptions that may not prove true. It is their job to point out flaws in political logic and to show when something, or in this case, someone would be a terrible, terrible, terrible thing for this country.


A quick Google search found other references to the exchange between Hannity and Kelly. Not one among the main news sites came to the conclusion that Kelly was a Clinton supporter. They all, accurately I'd say, refer to Hannity's comments as what they are, an accusation.


Facebook can be a great news aggregator, but we need to view things we see with skepticism. If a story sounds strange, unlikely, or too good to be true, look for other credible sources. Don't just repost it.


The second story, in a lot of ways, is far more disturbing.


The Senate is contemplating taking a stand against any Clinton nominee's to the Supreme Court (or any other court?).


While browsing news headlines over lunch, I came across this one: "This Could Be The Beginning Of The End Of The Supreme Court As We Know It." The gist of the article is that the Cato Institute says the Senate is well within its Constitutional right to never hold hearings on or confirm another Supreme Court nominee ever again.


The Libertarian (and in this context Constitutional Constructionist) Cato Institute, it should be noted, is a creation of the Koch Brothers. So, you might expect this kind of position from them.


I tend to take the Huffington Post with a grain of salt, as their reporting strikes me as hit and miss, occasionally sensationalist, and typical of mainstream news media. Still, this is a concerning claim from the Cato Institute and one that comes just days after Senator McCain said as much would be the case should Clinton win.


On the other hand, I found another article on the same subject that suggests an equally radical solution for Clinton and the Democrats: appoint without confirmation, its radical and, at least for me, completely unheard of.


But this is what at least one progressive lawyer and national Common Cause board member is suggesting, should the Senate continue to shirk their Constitutional responsibility. I recommend reading the whole article, but here's the core point, I think:

The Constitution glories in its abilities, however, and it is possible to read its language to deny the Senate the right to pocket veto the President's nominations. Start with the appointments clause of the Constitution. It provides that the President "shall nominate and by and with the Advice and Consent of the Senate, shall appoint.... Judges of the Supreme Court, and all other Officers of the United States." Note that the President has two powers: the power to "nominate" and the separate power to "appoint." In between the nomination and the appointment, the President must seek the "Advice and Consent of the Senate." What does that mean, and what happens when the Senate does nothing?

The common knowledge has always been that the President cannot appoint without the "advice and consent of the Senate." The question here is an interesting one. At least the author seems to believe that if the Senate chooses not to act, the President has nonetheless met his Constitutional obligation to present the nomination to the Senate. Why should the President, the Supreme Court, and arguably our democracy suffer if the Senate refuses to "advice and consent?"

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, "No procedural principle is more familiar to this Court than that constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it."

Its an interesting interpretation of the Constitution. One that certainly differs from that of the Cato Institute's view.


Not being a legal scholar of any kind, I have no idea how it would play out, but it'd interesting (and possibly entertaining) to watch play out.


Taking this course of action, Obama or, should she be elected, Clinton, would be a bold step to rebalance the checks and balances of our Democracy. Any such action would certainly wind up in court, but that's ok with me. I'd like to see Democrats take a stand and call Republicans on their nonsensical bullshit.

Contact

P.O. Box 11751

Honolulu, HI 96828

Tel: 808.371.9334​

josh.frost@beretaniaconsulting.com

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