Many Supreme Court justices have been appointed in the final year of a Presidential term, including Anthony Kennedy in 1988 by Ronald Reagan – with a Democratic Senate majority.
In January 2016, Barack Obama nominated Merrick Garland, a widely respected moderate judge. Republican Senate leadership refused even to bring Garland’s name to a vote. The excuse was the presidential election ten months away, which Republicans said should decide which party could nominate a new justice. Sen. Lindsey Graham said the Republicans would do the same in 2020, if a Republican president were completing his term and a Supreme Court seat came open. Democrats complained, but were powerless.
The Republicans’ action was unprecedented. Further, their rationale was fatuous. If a party’s senators may go on strike for the last year of the term of another party’s president, why not the last two years? Or three? One party could simply freeze the other out of the Supreme Court Justice appointing business.
The Republicans have acted lawfully, but unwisely. This can’t end well. I don’t approve of the Republican leadership’s power grab in 2016, or the current hypocrisy in rushing Trump’s nominee through. I don’t like what the Democrats may feel compelled to do in response. Court-packing has a bad name, but Congress could do it. The Constitution doesn’t set the number of justices (initially six). Dems could create a 15-member supreme court; then some day the Republicans could up that to 21.
The Constitution doesn’t call for parties. One could reasonably argue we’d be better off without ‘em. But after Republicans have used Russian help and unprecedented tactics to create a Court out of step with voters, it’d be hard not to take lawful corrective measures.
The Republicans have weakened the Court. Our forefathers founded a country of laws, which works only so long as citizens trust that laws are enforced fairly. That’s what the black robes and formalities are for. Justice is blind to color, faith, or politics. Although no judge can be completely neutral, our system depends on approaching that ideal as nearly as we can. Many justices were approved by acclamation. But now, increasingly, the question is not the candidate’s experience, sagacity, and judicial chops, but her party loyalty and position on abortion. We may get a nominee with just three years on the bench, and who wasn’t primarily a trial lawyer. But she’s indicated she’ll place her political beliefs above legal precedents.
And what of our democracy? Trump has broken laws and destroyed many safeguards against a corrupt dictatorship. He’s fired inspectors general (positions created by both parties as watchdogs for corruption and misconduct), and this week replaced one neutral IG with an aide to Trump-worshiping far-right Congressman Nunes. Republicans are using various tricks to decrease the vote count among people of color. Trumpist lawyers will wage an incredible fight, on the least excuse, to overturn an adverse result. Now Trump refuses to say he’ll leave the White House voluntarily if he loses.
In 2000, Republican justices bowed to party loyalty in Bush-Gore, tossing cherished principles out the window. Now a far-right supreme court, including three Trump appointees, could decide this election. It had seemed the Chief Justice’s respect for law, and his concern for his legacy, might lead him to choose law over Trump; but this new appointment could “trump” law and legacy.
Republicans know they’re increasingly unappealing to voters. Are they hoping a dictatorship will save them?
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[The column above appeared this morning in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG’s website. A spoken version will air during the week on both KRWG and on KTAL, 101.5 FM (http://www.lccommunityradio.org/), and will be available on demand on KRWG’s website.]
[We will now have a Supreme Court that is deeply out of step with the U.S. population. A majority of that population voted for Hillary Clinton and will likely vote for Joe Biden. The Supreme Court will have a two-thirds majority of deeply conservative justices. A larger majority of U.S. citizens believe pregnancies and abortions are for a woman, her doctor, and perhaps her husband or lover to decide – not the law. This Supreme Court may overturn Roe v. Wade.
Two points are a little less obvious. One is that Supreme Court credibility is being shredded, and will continue to be shredded. Legally, the Supreme Court is supposed to be interpreting the U.S. Constitution (and U.S. laws). Usually if the Court has decided a point in the past, the Court will respect that precedent. If this Court flatly tosses Roe v Wade out the window, it’s saying “Listen, this isn’t about the Constitution or any orderly process, we just think this way and have the power to do this.” Similarly, if a later Supreme Court re-interprets the Constitution as it has been interpreted in the past, as including women’s right to choose to abort a pregnancy, that will seem a political decision, not a neutral interpretation of the U.S. Constitution. The more often and the more plainly these things happen, the less moral or ethical authority the Court retains.
Secondly, the Supreme Court makes a difference not only on Roe v. Wade and gun control. It makes decisions on other headline items (whether or not governmental regulations aimed at combating global warming are permissible; immigration; First Amendment rights to free speech and freedom of religion) but a host of unnoticed issues that matter to someone: what protections do we have against monopolies? What are our rights to sue companies that do things that hurt us? If a big company does something clearly wrong, that hurts many people a little but no one enough to make it sensible for anyone to sue alone, how easily can those victims band together in a class action? Who gets to control the Internet? Do certain issues get decided by the feds or by the states? And, occasionally, who won the Presidential election. Suffice it to say that if you are a middle-class or poor person, your rights against big corporations are in trouble; and if you’re an endangered bird, you’re history. Oh, and if you have a pre-existing condition, forget health insurance! ]