Politics v the Constitution in Supreme Showdown

Listening to shell-shocked leftists and legacy media pundits in the days following the death of Supreme Court Justice Ruth Bader Ginsburg, you would think the only real consideration in naming a replacement to the high court at this time should be politics. But it is all sounding like the dying gasp of Democrats who paved their own path to destruction.

Voters stripped the left of the power to affect the court in 2016 and again in 2018, so Democrats have now been reduced to making hollow threats and hoping against hope that four GOP senators can be persuaded to defect from their own president at the height of a bitter election campaign.

A few desperate lines of argument are being channeled by Democrats through their friends in the legacy media. They assert that the state of civil unrest in this country would make it dangerous to nominate a new justice amid the heightened, riot-fueled tensions of an election campaign for the ages. They further argue that, since Republicans denied Merrick Garland a shot at the high court during the election year of 2016, the GOP should not be allowed to vote on a Trump nominee before this year’s election. Then there’s the assertion that, since we’re just six weeks out from the people delivering their verdict, only the man elected on Nov. 3 should be allowed to fill the vacancy on the high court. Lastly, there is the almost laughable argument, advanced by no less than former President Barack Obama, that we must honor RGB’s supposed dying wish that someone other than Trump name her replacement -- as if the left owns that seat. The likelihood that Democrats will be unable to stop Trump is revealed in their growing threat to respond by packing the court with additional justices sympathetic to the progressive cause and eliminating the Senate filibuster entirely -- implying that they can just snap their fingers when they regain power in the White House and Senate one of these days and make the consequences of their own political fortunes disappear. All of this is stated by panicked leftists as if only the present political environment and electoral calculations should guide the very future of the high court. Nothing could be further from the truth. The fact that this vacancy occurred late in a president’s term instead of earlier has no bearing on the clear instructions for these circumstances in the nation’s founding document, which much to the left’s chagrin remains the law of the land. Fact is, while the U.S. Constitution is arguably ambiguous on several matters that have been adjudicated in federal courts for almost 240 years, it is unambiguous on the matter of naming and confirming what are called Article III judges (whose responsibilities are outlined in that article of the Constitution), from the Supreme Court down to the district level. The framers were keenly aware of the pitfalls surrounding the judicial branch, as it was assigned the role of final arbiter of disputes between or among the executive and legislative branches. Thus, the prescribed process for selection is outlined with clarity and brevity in Article II, which pertains to the powers of the president:

“(The president) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

As in most other matters during the Trump era, the Democrats have rejected the Constitution,  and the regular order it commands, in favor of crying, stomping their feet, taking their toys, and going home. But that will hardly stop the clear constitutional imperative that stands before President Donald Trump. He is fully empowered to nominate a justice whenever a vacancy occurs, and the Senate is equally entitled to offer or refuse their advice and consent, i.e., a vote.

Let’s take the Democrats’ arguments one by one. The state of civil unrest in this country is hardly the responsibility of Trump; even if it were, it does not change the powers vested in any sitting president. Responsibility for the riots sits squarely at the feet of Democrats ruling every single city that has been under siege, as they refused to stop or even condemn the growing violence for months on end. So their statement that civil unrest caused or allowed by them should stall the completion of a nine-member high court is akin to the proverbial defendant who kills his parents and then pleads for mercy from the court because he is an orphan. Yes, Republicans turned aside Obama’s nomination of Judge Garland four years ago, but it was because they had the power, the constitutional prerogative, to do so. And they now maintain that power to do the opposite and vote on a nominee at a time of their choosing. The GOP’s continuing control of the Senate -- expanded from 51 to 53 members in the 2018 midterms -- is also a direct result of the Democrats’ own actions in attempting to torpedo Brett Kavanaugh the last time around. Once again, they have only themselves to blame for their harrowing circumstances. The assertion that Trump should cease and desist until after the election is 100% politics, devoid of any constitutional or historical foundation. Nine presidents, including George Washington, Woodrow Wilson and William Taft, responded to election-year vacancies on the high court by advancing nominations before Election Day when their party held the majority in the Senate. Three presidents who had already lost the presidential election even filled Supreme Court vacancies during lame-duck sessions following elections. Ask yourself what the Democrats would have done in both the case of Garland and the current situation were the roles reversed. Does anyone seriously doubt that they would have similarly forestalled the Garland appointment and then rushed to fill the current vacancy? Of course not, and everybody knows it. And that just makes their arguments even weaker. Democrats accuse the GOP of hypocrisy for giving the cold shoulder to Garland in the heat of an election and now reversing course on Trump’s third nominee to the high court under similar circumstances. Fair enough, but there is a substantive difference between nominating a justice during an election year when the voters had delivered a split decision in the previous election -- Democrats controlled the White House, Republicans the Senate during 2016 -- and doing so when voters have granted both executive and Senate power to the same party, in this case, the GOP. This is pure politics, where hypocrisy all but got its name. The voters are capable of sorting out and registering their response to all this on Nov. 3. Honoring RGB’s supposed dying wish that anyone but Trump select her successor is actually little more than a stain on the legacy of RGB, a judicial giant who descended into death with her last confirmed statement drenched in politics. Did the almost certain desire of the late Justice Antonin Scalia that his seat be handed off to another conservative jurist hold any weight with the Democratic Party? Democrats have somehow persisted in the belief that their scorched-earth response to the election of Trump, their years-long refusal to accept the outcome, and their self-defeating attempts to destroy Kavanaugh would somehow benefit them politically. But now their chickens have come home to roost, and we can hear the clucking all the way from here to Capitol Hill. ~ Read more from Tim Donner.