Who reacts to a less than 1% chance of something? Only a liberal law professor.

            There’s an old saw in the legal community that if you have the facts, argue the facts, if you have the law, argue the law and if you have neither, just argue loudly.   Writing in the Louisville Courier-Journal, University of Kentucky law Professor Joshua A. Douglas, apparently decides on the argue loudly approach.  He starts with the premise that an evenly divided Court might end up deciding the 2016 election and concludes, therefore, the Senate should vote on President Obama’s apparent Supreme Court nominee, Merrick Garland.

            Let’s start with his premise: the Court might end up deciding the election.  There have been 57 presidential elections prior to the upcoming 2016 election.  How many have been “decided” by the Supreme Court?  Technically, none.  Bush v. Gore in 2000 did not decide the election; rather, Bush v. Gore determined whether Florida’s process for selecting the president did or did not violate the equal protection clause.  Moreover, it is the only instance in our history when the Supreme Court was asked to make this kind of decision.  The odds that there might be a need for the Supreme Court to step in are, thus, already quite remote, even before the election happens.  It’s an odd sort of argument for a lawyer to say “well you know this might just happen under an extremely unpredictable set of circumstances in a really close election, so therefore we should act in a certain way.”

            Secondly, Douglas himself points out the equal protection vote went 7 – 2 against Gore.  Why assume the likelihood of a 4 – 4 determination based on the current constitution of the Court?  Is Douglas suggesting all the current members of the court are pure ideologues who would simply vote along party lines?  Moreover, there is only remote chance this election will end up in litigation and, additionally, no reason to assume the court will necessarily end up in a 4 – 4 draw.  It might, it might not. 

            Third, Douglas fears greatly that a state supreme court will have the final say if the Supreme Court were to split 4 – 4, since such a decision means the lower court decision stands.  So what?  So a state court rules on its own laws, with which it is likely much more familiar than the Supreme Court.  Can state supreme court justices not be relied on to make reasoned, thoughtful decisions?  Douglas suggests that “elected judges” (which we have in Kentucky and which I am against – but that’s for another day) are partisan.  Perhaps, but even partisan players can make reasoned, appropriate, and legally correct decisions.  As a litigator, I learned the tendencies of the judges in front of whom I regularly appeared.  I can think of many instances where judges who leaned one way politically made decisions that were simply based on the law and nothing else.  In other words, they didn’t let sympathy for a partisan cause sway them, even when their inherent biases might have tugged at them to do otherwise when the law was clear.

            So Douglas bases his arguments on an incredibly weak premise, makes several assumptions that may, or may not, be borne out in reality, then suggests therefore the Senate should act on Merrick’s nomination.  Of course, he admits, as he must, that his argument contains “a lot of big ifs.”  Then he makes his most fallacious argument: do we really want to take the chance?  Talk about just argue “real loud.”  There is currently less than a 1.8 % chance (1 in 57) there will be a Supreme Court case regarding the 2016 presidential election and there is no way to know what the chances are the justices end up 4 – 4.  Assuming even odds of a 4 – 4 decision, that means the overall odds of some “partisan” state supreme court effectively making the decision are around 0.9%.  Oooooh, scary.  (By the way, when a liberal says “partisan” he or she generally means conservative). 

            According to Professor Douglas, the Senate should act on President Obama’s nominee because there is a less than 1% chance something could happen.  The problem is, of course, Professor Douglas doesn’t even know what the “something” might be at this point.  So there is a really small chance of an unknown event occurring resulting in a currently unknown state supreme court making a so-called “partisan” decision that the Supreme Court then takes up with completely unknown odds of how the Supreme Court might rule.  And this is a basis for arguing the Senate should take up Judge Merrick’s nomination?

            I wonder if one of his students made such an absurd argument how Professor Douglas would grade the student?  We all know the answer.