April 24, 2016

Can baseball help break impasse on Judge Garland?

Paradigm Shift

Eldon L. Ham
By Eldon L. Ham
Eldon L. Ham, president of Eldon L. Ham P.C., is a member of the faculty at IIT Chicago-Kent College of Law and legal analyst for radio station WSCR-AM. He’s the author of five books on topics of sports history.

It’s spring, baseball and politics upon us, and we are reminded of the national pastime’s unique influence on our American language (left field), culture (Jackie Robinson), law (antitrust), and even the Supreme Court.

Can Majority Leader Mitch McConnell’s Senate actually obstruct the appointment of justices into perpetuity, forever reducing the Supreme Court to eight justices, then seven and eventually none?

The Constitution doesn’t really say. But baseball, as it happens, may have the answer.

The Senate may have waived its right to advise and consent on the Garland Supreme Court nomination by abrogating its duty. Why? Check Major League Baseball’s reserve clause. Really.

For decades, the reserve clause was a ball-and-chain obstruction to player free agency. The reserve system was so oppressive that star outfielder Curt Flood called it modern-day slavery. Four years later, in 1976, the almighty reserve clause was gone — killed by the overreaching greed and arrogance of team owners. What happened?

The player contract contained a one-time provision giving owners the first refusal to re-sign all their own players. If teams and players could not come to terms, the player had to remain with the team one more year, but at a 25 percent reduction in salary.

This killed free agency until two major league pitchers, Andy Messersmith and Dave McNally, convinced an arbitrator to read the entire clause.

The reserve clause gained its power from the subjective interpretation of the owners, much like Mitch McConnell interprets his own stonewalling powers. The owners believed that a one-year renewal of the playing contract meant that their one-time first refusal renewed itself each time, over and over. They argued that “once” meant the same as “eternity.”

The players countered that “one time” meant just once only. The arbitrator agreed because of the second part — the greedy part — of the clause. If the two sides could not agree, the old deal rolled over for a year, but at a 25 percent reduction in salary. If this could keep happening over and over, the salary would get reduced 25 percent every year to virtually nothing. This could not have been the original intent of the parties, since it would lead to an absurd, unintended result.

Why would any team bargain in good faith if it could keep a star player like Curt Flood into perpetuity for free?

Consider the Garland nomination. The Senate must advise and consent. If it is allowed to table the consent forever, through attrition it could cause the court to go from nine justices to its current eight, then seven and eventually none as justices die or retire. This would allow McConnell to personally eliminate the Supreme Court, erasing entire sections of a Constitution that the far right seems to embrace so strongly.

But such arbitrary obstruction could not possibly have been the intent of the framers, rendering McConnell’s inaction as too clever for its own purposes.

What we have in the Senate, then, is an abuse of power that most of us recognize as “having our cake and eating it, too.”

Did the framers intend for a Senate majority leader to eliminate the entire Supreme Court on a whim? Just as baseball owners took their reserve power too far with the salary-reduction rule, McConnell misuses the “advise and consent” provision to control or even eliminate the Supreme Court.

But the law, which does not favor illogical inconsistencies, would say he waived the Senate’s right to consider Garland by his express refusal to proceed. One cannot both give up a right and keep it at the same time.

Moreover, McConnell may be up to more than the usual obstruction here: He seems to be buying time. Is he really trying to get the court down to seven justices? Note that the liberal Justice Ruth Bader Ginsburg is 83 years old. If the court loses her, it will be a seven-justice conservative court.

But rather than allow the Senate to play this shell game, the president should now be able to appoint Garland without further obstruction.

“Use it or lose it” applies to evolution, law and the Constitution. If the Senate refuses to advise or consent, then fine, but it should also lose the right to do so. Greed and absurdity are never good-faith arguments. Just ask the baseball owners — and Curt Flood.

Batter up, Mr. President.

This article was originally published in the April 15, 2016, edition of the Daily Law Bulletin.

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