The death of Supreme Court Justice Ruth Bader Ginsburg has been a huge blow to this country. I say this, not because of her liberal-leaning rulings, but her outstanding character and personality. Ginsburg was a brilliant, dedicated legal mind who fought ceaselessly for the rights of all individuals. She was a pioneer in her field, a person who broke barriers and challenged injustice wherever it may be found. Yet she always maintained a sense of decency, respect and cooperation for those who disagreed with her. What a loss her death represents.
Not
surprisingly, the opening created on the Supreme Court is now the hottest topic
in the nation. Conservatives see this as
a coveted opportunity to influence the Court in their favor, sensing a 6-3
majority that would almost certainly survive the possibility of one Justice
going rogue over an issue. Liberals, on
the other hand, have felt for some time that they are on the verge of becoming
voiceless. Because the divide to this
point has been 5-4 in favor of the conservatives, those on the “Left” have
survived as best they could by relying on a “swing vote” from one of the more
moderate Conservatives.
It is a
shame that judges, and especially Supreme Court Justices, are perceived to be
conservative, liberal, or moderate. I
would prefer that we could toss those labels out with the trash. But that will not happen in this polarized,
tension-filled world we live in.
I find
myself extremely frustrated with our political system these days. There is so much in need of overhaul. The Supreme Court is yet another
example. Justice is to be blind. It is to see only right and wrong, holding to
the letter of the law, and casting decisions based on facts and evidence. SCOTUS is to protect us from the excesses of
politics and the bitterness of partisanship.
Such goals, however, are increasingly fading.
With this
in mind, we need to look at how justices are selected. We all know the Constitutional protocol: the President nominates a candidate; the
Senate provides “advise and consent” by first holding a hearing on the
candidate, then making a preliminary decision by the Judicial Committee, and
then a full Senate vote. This is not a
perfect system, but I suppose it is as good as we will get. Except, it doesn’t work that way.
The most
glaring example of abuse was in 2016.
Justice Antonin Scalia died unexpectedly on February 13, 2016. President Barak Obama dutifully named a
candidate after careful consideration.
Merrick Garland, a moderate who built a reputation of being fair and
respectful, while managing to be void of political partisanship, was a perfect
choice. He should have been acceptable
to a huge majority of the Senators. I
would go so far as to say Merrick Garland was an ideal choice who represents
all that a good judge should be.
Sadly,
Garland did not stand a chance. Because
of the insane, democracy-denying rules of the U. S. Senate, such decisions are
not made by the full Senate. Rather, the
Senate is run like a dictatorship. The
Senate Majority Leader, regardless of which party he or she belongs to, rules
over the Senate with an iron fist. This
person can singlehandedly decide to kill any vote, any consideration, any
resolution – in short, ANYTHING – he or she desires. Nothing can come before the Senate without
the consent of the Majority Leader. As a
case in point, the House of Representatives passed approximately 400 bills in
the current session that have been sent to the Senate. This includes the Heroes Act, a package
intended to provide financial relief to families and the economy during the
COVID-19 pandemic. All of these bills,
including the Heroes Act, have died in the office of Senate Majority Leader
Mitch McConnell. One man has decided he
does not like them and so he refuses to allow them to come up for a vote. This is not democracy. This is a despot who unilaterally decides
everything. Its not just McConnell. All of his predecessors, including Democrats
Harry Reid and Chuck Schumer, held the same power. This is a terrible injustice.
I feel that
McConnell was totally out of line in 2016 when he, and he alone, decided that he
was above the Constitution and the President by refusing Merrick Garland from
ever getting a hearing. I said then that
the Senate’s role is to “advise and consent”.
It is not to nominate. But that
is what Mitch McConnel did. He assumed
the power and authority of the Presidency by deciding that he did not like
Garland and thus killed the process.
What Mitch McConnell did should be illegal. It certainly was unethical. But there is no one to hold him
accountable.
The
argument put forth from McConnell and every other Republican Senator was weak
and inaccurate. He claimed that it was
the right of the people to weigh in through the election process. In McConnell’s warped mind, if a Supreme Court
vacancy occurs in the last year of a President’s term, the President has no
right to nominate anyone. It would be
proper to wait until after the upcoming election to let the voters decide if
they want a Republican or a Democratic President to nominate justices. That person, then would have three years to
nominate a replacement. Of course, one
could argue that the issue was already settled in 2012, when Barack Obama was
reelected. But that would not solve
McConnell’s objective.
Let us be
perfectly clear: The Constitution does
not say anything that remotely sounds like this. To follow the Constitution to the letter, the
President must nominate, and the Senate must weigh in through a vote. That’s it.
I felt at the time that President Obama was correct in making a
nomination and the Senate was obligated to vote on it.
Now, four
and a half years later, Justice Ginsburg has died and another opening has
arisen. In keeping with the argument
above, I would feel that President Trump has the right to nominate a
replacement, and the Senate must consider it.
Except for one thing. Mitch
McConnell changed the Senate rules in 2016.
A democracy, even with all of its flaws, must function in
an orderly and consistent manner. I
think the Senate rules stink, but rules are rules. Because McConnell is committed to the
principle that a President should not make a nomination to the Supreme Court in
the last year of his current term, therefore Trump cannot make a
nomination. What is good for the goose
is good for the gander.
Now, Mitch,
being Mitch, cannot live with consistency.
He routinely makes up new rules to meet his agenda whenever
necessary. So, Mitch enthusiastically
welcomed Trump’s nomination and committed himself to pushing it through with
all haste. The problem here is that
McConnell has already gone on the record saying no President should nominate a
Supreme Court Justice during the last year of their term in office. But now, McConnell is doing his McConnell
thing and creating yet another new rule.
This one says that the previous McConnel doctrine only applies when the
White House is controlled by one party and the Senate is controlled by the
other party. Once again, there is
nothing in the Constitution to even hint of this. But McConnell never claims to work according
to the Constitution. A new rule for a
new scenario. It is interesting that he
did not use this argument in 2016. But
again, he did not have to, because he is not answerable to anyone. Anything that will promote the Will of Mitch
is acceptable.
As
expected, all the little Republican Senators who mindlessly follow The Mighty
Mitch nod their heads in agreement like a bunch of bobblehead dolls. Those who were in the Senate in 2016 approved
of Mighty Mitch’s man-made rules then, and obediently approve of his newest
rule now. Like little robots they all
claim this is the way it has always been.
But they are wrong!
Admittedly,
what we have here in 2020 is an unusual case.
The death of a Supreme Court Justice so close to an election is a rare
thing. It is not unique, though. To do a full investigation one needs to go
back to the beginning of the Republican Party.
The year
was 1864. Abraham Lincoln was President
of the United States. Lincoln was the
first Republican President in the history of the country. In fact, the Republican Party was only10
years old, forming in 1856 in opposition to slavery. The Election of 1864 was approaching, and the
Civil War was winding down. Then
something happened that must have rocked the country. Roger Taney, the Chief Justice of the Supreme
Court, died with a mere 27 days remaining before the election. It should be noted that Lincoln was a
Republican President, and the Senate was clearly controlled by the Republicans
with a 37-9 super majority. Think about
this: the same Party controlled both the
White House and the Senate when Taney’s death created a vacancy on the Supreme
Court just 27 days before the election.
The only difference between then and now is 18 days. Ruth Bader Ginsburg died 45 days before the
election, instead of 27. However, unlike
1864, the election is already underway today.
Early voting is taking place.
Ballots are being cast.
The
fascinating thing is that Lincoln decided not to nominate a replacement
for Taney until after the election. I do not know why he made this decision, but
he did. So here we have a prominent
precedent: A Republican President, with
a Republican Senate, refusing to nominate a replacement for the Supreme Court
vacancy that arose within 27days of a Presidential election. I am sure Mitch McConnell is aware of
this. In fact, McConnell fabricates his
own sense of history whenever it is convenient for him. Consider this portion of research from the
Brookings Institute in response to The Mighty Mitch’s 2016 claim supporting his
decision to deny President Obama’s nomination of Merrick Garland, when the
Majority Leader said, “All we are doing is following the long-standing tradition
of not fulfilling a nomination in the middle of a presidential year.” Hey, Mitch, what “long-standing tradition”
are you referring to?
“There is no such tradition. The table shows
the nine Supreme Court vacancies in place during election years in the Court’s
post-Civil War era—once Congress stabilized the Court’s membership at nine and
the justices largely stopped serving as trial judges in the old circuit courts.
Those nine election-year vacancies (out of over 70 in the period) were all
filled in the election year—one by a 1956 uncontested recess appointment and
eight by Senate confirmation.”
|
Vacancy |
Date |
Cause |
Nominee and Nomination Date |
Conf. date |
Vote |
Unified or Divided Party Control of WH and Senate |
|
Woods |
5/14/1887 |
Death |
Lamar
(12/6/1887) |
1/16/1888 |
32-28 |
D
(39-37) |
|
Waite |
3/23/1888 |
Death |
Fuller
(4/30/1888) |
7/20/1888 |
41-20 |
D
(39-37) |
|
Bradley |
1/22/1892 |
Death |
Shiras
(7/19/1992) |
7/26/1892 |
Voice |
U
(47-39-2) |
|
Harlan |
10/14/1911 |
Death |
Pitney
(2/19/1912) |
3/13/1912 |
50-26 |
U
(52-44) |
|
Lamar,
J. |
1/2/1916 |
Death |
Brandeis
(1/28/1916) |
6/1/1916 |
47-22 |
U
(56-40) |
|
Hughes |
6/10/1916 |
Resignation** |
Clarke
(7/14/1916) |
7/24/1916 |
Voice |
U (56-40) |
|
Holmes |
1/12/1932 |
Health |
Cardozo
(2/15/1932) |
2/24/1932 |
Voice |
U
(48-47-1) |
|
Minton |
10/15/1956 |
Health |
Brennan
(10/15/1956, recess appointment) |
D
(48-47-1) |
||
|
Warren* |
Fortas
(6/26/1968) |
None |
U
(64-36) |
|||
|
Fortas* |
Thornberry
(same) |
None |
Same |
|||
|
Powell |
6/26/1987 |
Health |
Bork
(7/7/1987, failed) |
42-58 |
D
(55-45) |
|
|
Kennedy
(11/30/1987) |
2/3/1988 |
97-0 |
Same |
|||
|
Scalia |
2/13/16 |
Death |
Garland
(3/16/2016) |
None |
D
(54-44) |
|
|
Ginsburg |
9/18/20 |
Death |
U
(53-47) |
|||
* No actual vacancies. Incumbents hinged
their vacancy creation on their successors’ confirmations.
** Hughes became a presidential candidate.
One has to wonder what tradition
McConnell was referring to in 2016.
Obviously, he was making things up to benefit his agenda, as
always. Of course, it is not just
McConnell. Lindsey Graham is just as
bad, if not worse. Graham said in 2016
that he did not care if a Republican or a Democrat held the office of
President, it would be wrong for that person to nominate a Supreme Court
Justice in the last year of his term of office.
Graham went so far as to say people can use his words against him if he
ever violated that principle. But now,
as Chairman of the Senate Judicial Committee, Graham has vowed he will push any
nomination through as soon as possible.
OK, Mr. Chairman, we will use your words against you! Oh, by the way, Graham and McConnell are both
up for reelection this year!
G. D. Gehr
9/28/2020
No comments:
Post a Comment