PAGE A4, KEIZERTIMES, FEBRUARY 19, 2016
KeizerOpinion
KEIZERTIMES.COM
Obama must nominate justice
The funeral for the late
Supreme Court Justice
Antonin Scalia hasn’t been
held yet and already the
forces are out to hyper-
politicize the naming of his
replacement.
Scalia died last weekend
at the age of 79 after serv-
ing nearly 30 years on the nation’s
highest court. He is being lionized
across the spectrum as a giant in the
judicial world, a fi rst-class intellecdtual
and a never-say-die defender of con-
servative values.
The United States Supreme Court
can boast any number of great think-
ers in its history from John Marshall to
Charles Evan Hughes to Earl Warren.
The Constution calls for the president
to nominate justices and the Senate
to advise and consent on the choice.
The confi rming of justices was a fairly
routine affair until President Lyndon
Johnson unwisely tried to get his
friend Abe Fortas approved as chief
justice to replace Earl Warren. Fortas’
own shortcomings (and the political
calendar of 1968) forced him to resign
from the court.
In 1987 President Reagan nomi-
nated Robert Bork (famous, in part,
for his role in the Saturday Night
Massacre of the Watergate Era). Bork
was a staunch conservative and Con-
stutional orginalist; he was vilifed and
opposed by many groups (and one of
only three Court nominees ever to be
opposed by the American Civil Liber-
ties Union). His nomination was de-
feated by a 42-58 vote.
Reagan then nominated Anthony
Kennedy who was confi rmed by a
97-0 vote in February 1988. By that
time the presidential race was well
underway but no Democratic or Re-
publican Senator called for a delay to
allow for the new president to fi ll the
vacancy.
Fast forward 28 years and the story
is very different. Within hours of the
announcement of Scalia’s
death Republicans (includ-
ing the six presidential
candidates) said that Presi-
dent Obama should leave
the nomination of Scalia’s
successor to the next presi-
dent—to be elected in 11
months and sworn in two
months after that. This is no way to
run our government.
Republicans, who sense a victory
in the presidential election, see no
harm if they demand Obama stand
down on naming a justice. During
the debate Trump said that the Senate
Republicans can use delaying tactics
to assure no further Obama appointee
sits on the Supreme Court.
Senate Majority Leader Mitch Mc-
Connell said the American people
should have a say about a nominee.
The American people have never had
a say about a Supreme Court (or any
other federal court) nominee. The
public can make speeches, write let-
ters, lobby their member of Congress.
The president nominates and Con-
gress considers and votes for or against
approval.
Senator Elizabeth Warren said it
exactly right about McConnell’s view:
the people did have a say on Court
nominations when they re-elected
Obama in 2012 by more than 5 mil-
lion votes.
If Scalia had died one or two years
earlier none of this would be an issue.
Let the process work as the Founding
Fathers wrote in the Constitution. If
politicians don’t like the system they
can try to change it via amendments
but that is unlikely.
President Obama said this week he
will fulfi ll his duty and name a nomi-
nee for the vacant Supreme Court
seat. He is doing what Scalia so often
said government should do: heed the
Constitution’s intent.
Obama is right; obstructionists are
wrong.
—LAZ
editorial
What Keizer loses
Tuesday’s city council meeting
was the fi nal one for Brandon Smith.
He submitted his resignation last
week; he is moving to Salem, making
him ineligible to serve on the body.
Smith has served twice on coun-
cil. He was appointed to a vacancy in
late 2007 and won the seat in his own
right in the 2008 election and served
until early 2013. He commenced an
unsuccessful write-in candidacy to
retain his seat against Ken LeDuc.
Smith ran unopposed for the city
council in the 2014 election.
Though always true to his politi-
cal and ideological leanings, Smith
was an unabashed supporter of ev-
erything Keizer. That’s evident in his
resume of service on a wide num-
ber of commissions, committees and
task forces. His chairmanship of the
Keizer Parks and Recreation Advi-
sory Board was important because
it brought about the matching grant
program that allowed the commu-
nity to improve parks if it raised half
of the cost of a project.
Smith was at the forefront of a
move to create stable funding for
Keizer’s many parks. Discussions are
on-going about a parks district or
other options.
Brandon Smith was not a showy
politician. He quietly worked on
the tasks at hand; he asked insight-
ful questions at council meetings and
didn’t accept as fi nal any answers he
did not agree with.
What Keizer loses with the loss of
Brandon Smith from the city coun-
cil is a resident who knows his own
mind and wants what is best for the
city and its residents and is willing
to, politely, do what is necessary to
achieve that.
—LAZ
Thanks for
your kindness
missing. At that moment,
I received a call from my
bank that it was there, safe
and sound. Thank you, I
love a happy ending! Yet
another reason why I
love living in Keizer!
Audrey Butler
Keizer
letters
To the Editor:
To the gentleman who
found my bank card, I would
like to say “thank you” for
going out of your way to return it
to my bank. As fate would have it,
I was frantically searching for my
card today when I realized it was
Keizertimes
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Replacing Scalia will take epic effort
By MICHAEL GERSON
A public offi cial can fi ght to ex-
pand the power and prerogatives of
his offi ce with skill and cunning. De-
fending the prerogatives of other of-
fi cials, in another branch of govern-
ment, is done only out of principle.
Justice Antonin Scalia spent a career
in America’s judicial aristocracy de-
fending representative democracy.
He wanted courts to play a limited,
supportive role, interpreting texts
produced by representatives of the
people. If new meanings are required
—as they often are, in a varied, pro-
gressing country—then it is the peo-
ple who need to provide them.
“Do you think the American
people would ever have ratifi ed” the
Constitution, Scalia asked, if they
had known that “the meaning of this
document shall be whatever a major-
ity of the Supreme Court says it is?”
On issues such as abortion rights, he
said that judges “vote on the basis of
what they feel,” which amounts to
“the destruction of our democratic
system.”
The reaction of judges who enjoy
a starring role in American govern-
ment was, and is, negative. Which is
unsurprising. Progressive judges have
an interest in making their private
moral intuitions the law of the land,
without the inconvenience of having
to persuade their fellow citizens. If
judicial decision-making involves the
interpretation of evolving standards,
this gives tremendous infl uence to
the interpreters. Progressives gener-
ally like this approach because it has
secured progressive outcomes. But,
as a political theory, there is nothing
particularly liberal about it because it
grants immense political power to a
small self-serving, self-dealing elite.
Here is Scalia: “The non-original-
ist judge who decides what the mod-
ern Constitu-
tion ought to
mean—perhaps
by applying his
favorite prin-
ciples of moral
philosophy, or
perhaps only by
applying his own brilliant analysis of
what the times require—escapes the
application of any clear standard, by
which we may conclude that he is a
charlatan.”
In exposing this scheme, Scalia—
the strongest of Catholics—was thor-
oughly Protestant in his disposition.
He viewed the advocates of a “liv-
ing Constitution” in much the same
way that Martin Luther viewed the
Roman Catholic priesthood—as a
class maintaining its power through
mystifi cation and the claim that only
it can interpret sacred texts. Sca-
lia argued for the plain meaning of
texts, available to everyday people. A
priesthood of citizens. And Scalia did
spark something of a reformation, in-
spiring a generation of judicial origi-
nalists who have gained serious infl u-
ence in academia and on the bench.
The question “Who judges?”
is also the question “Who rules?”
Scalia, the brightest judicial light of
his time, wanted the representative
branches to rule.
And so how is the legislative
branch likely to respond to a Su-
preme Court vacancy as consequen-
tial as the one Scalia’s death creates?
Not well.
In the plain meaning of the text
of the Constitution, appointing
“judges of the Supreme Court” is a
presidential power. And Alexander
Hamilton, in Federalist 76, asserts
broad presidential discretion in exer-
cising this authority and sets out nar-
row grounds for the Senate to reject
other
views
nominees.
All of which now means little. The
nomination system is broken beyond
recognition. And yes, it is Democrats
who started it. The nomination of
Robert Bork to the Supreme Court
during the Reagan years set the pat-
tern—in ideologically decisive nom-
inations—of war-room style cam-
paigns involving opposition research
and public defamation. As far as I can
tell, there is no going back.
President Obama’s task is further
complicated by exceptionally bad re-
lations with Congress. Most Repub-
lican leaders can (and do) relate sto-
ries of snubs and disdainful treatment
by the president. He has no chits of
goodwill to cash.
And the political pressures on
Senate Majority Leader Mitch Mc-
Connell all go in one direction: to
delay and delay, without even a Judi-
ciary Committee vote. If McConnell
allows a decisive change in the Su-
preme Court on his watch, conserva-
tives will ask: What good is having a
Senate majority anyway? The revolt
against McConnell would be broad,
and include much of the Republican
presidential fi eld.
Obama will attempt to change
this dynamic with an appealing and/
or exceptionally qualifi ed nominee.
Could the Iowan leader of the Ju-
diciary Committee, Chuck Grassley,
really oppose an Iowan? Could the
Senate refuse someone who it ap-
proved for a lower court by 97-0?
It will not matter. In part because
the Supreme Court has assumed
such a large role in American life, a
decisive shift in its ideological com-
position would be an event of mas-
sive political consequence. And no
one will be bringing the Federalist
Papers to this knife fi ght.
(Washington Post Writers Group)
Put more effort into CTE for students
Some of our state legislators will
get into something that has complex
features and then over-simplify it for
the sake of political gain. A classical
example of such a matter is a guest
opinion in another newspaper by
Republican Senator Ted Ferrioli of
John Day who wrote glowingly but
without a word about the historic
shortcomings regarding career and
technical education programs (CTE)
for Oregon high school students.
He began reasonably enough
when he wrote that in spite of low
graduation numbers and poor school
outcomes, it’s important for state po-
litical leaders to want to bring about
investments for improvements in
Oregon’s schools. Wisely, he doesn’t
want to see another task force de-
voted to this matter; rather, he seeks
budget allocations for programs
that have, mostly in other times and
places, proven their value. These are
career and technical education pro-
grams or CTEs.
Ferrioli reminds readers in his
piece that the state’s Department
of Education reported recently that
CTE students in Oregon are 15.5
percent more likely to graduate from
a high school in four years time
than their fellow students, without
CTE involvement. This information
should surprise no one who has been
in Oregon public education for a
while as this statistic could have been
borrowed from report after report on
the value and importance of career
and vocational education as long ago
as the 1970s if not decades before.
Unlike schools in most European
nations where academic and voca-
tional-technical schools are separate-
ly made available to those with prov-
en, tested aptitude leanings in either
direction. Our high school students
are not so well directed. Here it’s
been found
by
attempt
after attempt
to
install
them all over
the state, too
many Oregon
parents have
resisted nearly to the “death” any ef-
fort to separate their child from oth-
ers who are college-bound until they
are hit over the head with a fi gura-
tive hammer that their child is not
interested in an academic college
education. That alternative-minded
child should have been trained dur-
ing their high school years in a skill or
trade that could lead to a well-paying
job that provides a living wage.
Another factor is that Oregon
is generally unwilling to put the
dollars necessary to build career
and technical programs with cutting
edge facilities, instructors, administra-
tors and working relationships with
the world of work. The students who
do attend can appreciate signifi cant
learning outcomes, have a chance to
move from a learning center, as Fer-
rioli writes, “prepared for real family-
wage jobs in today’s workforce.”
At the end of the last century I
worked as executive director to
the state council on career and vo-
cational education. The council was
populated by 16 gubernatorial ap-
pointees from education, relevant
state agencies, business and industry,
with its main task to identify and
assess all career and vocational edu-
cation programs in Oregon’s high
schools and community colleges. It
was a diffi cult task at best because
the Vocational Education Division
of the Department of Education did
not appreciate a group outside its
walls assessing its successes (and —
horrors— its failures). Furthermore,
gene h.
mcintyre
although I testifi ed before appropri-
ate committees of the Oregon Leg-
islature, with information the likes of
which Ferrioli references, the distri-
bution of state monies always came
up wholly to what my council and
I, with hard evidence in hand, advo-
cated.
I hope that the Legislature sup-
ports funding for CTE programs
all over the state. We’ll see whether
Salem-Keizer School’s CTE pro-
gram succeeds ; if it remains mar-
ginal as has been CTE in Ore-
gon, while the principal (not from
a voc-tech background) wanting to
present success, have the ability to
improve on inadequacies or hide
behind the modern day bureaucrat-
ic slight-of-hand that so often char-
acterizes our public school manage-
ment operations circa 2016.
Meanwhile, too, when it comes
to jobs like those in construction,
maintenance, repair work and ag-
riculture, so many workers now are
of Hispanic/Latino origin. Because
many of these jobs require dirty
hands, long hours and exposure to the
elements, too many American youth
don’t want them and will instead re-
sort to crime, marijuana sales, a gov-
ernment handout, etc. Unless this
challenge can be dealt with in ways
that encourage a change for young
people born here, who aren’t driven
by their parents for status fulfi llment,
these many jobs will continue to be
fi lled by newcomers from Central
America. Hence, a grand redesign of
our high schools with as much voca-
tional as academic opportunity could
make a huge difference. If Ferrioli
is sincere, he’ll rally his associates and
the governor around a secondary
school consequential make over.
(Gene H. McIntyre’s column ap-
pears weeky in the Keizertimes.)