Good morning and happy Tuesday! Due to technical difficulties (your Queen forgot to check her email) we have Stephen’s typical Monday post today. Enjoy!
When news of Justice Ginsburg’s demise, I thought it inappropriate to too hastily discuss the politics of her replacement instead gave some time to celebrate her life of achievement. Well, a few days have past, now we may take a more critical look at her replacement, the political impact of the impending shift in the court and even disagree with the merits of those achievements.
However, while I and many others thought it appropriate to allow at least a few days for her family to grieve and mourn without turning out political propaganda, many others, primarily on the left, immediately threatened civil war if the President and the Senate should choose to appoint a new justice to fill the vacancy prior to the upcoming election, claiming that the Republicans had set the “precedent” of not bringing up the Merrick Garland nomination for a vote citing the then pending presidential election of 2016.
(Unfortunately there were even people ostensibly on the right taking to public platforms for a bit of grave dancing which many justifiably found repulsive, but that is not the topic which I would choose to discuss in this article.)
It appears that many people simply do not fully understand the precedent and what it means in the general scheme of judicial nominations, particularly to the Supreme Court.
First, let us look back in history, not just the political memory of a long lived gnat, and we can see, as Jim Jordan put it, that 9 out of 10 times when the Senate was a majority of the same party affiliation as the President during an election year the nomination went ahead as normal, but only 1 time out of 8 did such a nomination come to an appointment when these august bodies were of different political persuasions.
There was in the writing of the Constitution, expressed in the Federalist Papers, and espoused by the Enlightenment philosophers of the day the ideal that they purpose of a High Court, whether the US Supreme Court, or the King’s Court in England, or the highest court of review in any civilized nation, was to objectively, dispassionately, and apolitically pronounce or interpret the law in such a way as to provide guidance in the law to the lower courts.
The very purpose of the Separation of Powers central to the structure of the Constitution itself was to relegate political acrimony and dissension to the legislative function of the government and remove it, as much as may be possible, from both the executive and the judicial branches of our government.
However, as naturally happens, the more powerful, immense, and invasive a government becomes, the more political even its most minor functions become. If you want a less political court, and thus a less political nomination process, then you must first reduce the size and scope of government. As we do not have that, we must address reality as it now stands and not what we fervently wish that it were.
The idea that the politics of a Supreme Court Justice nomination should not occur in the year of a political election is not actually the precedent which has been set, no matter how much people on the left wish to say it were so, nor does in matter that the right used such language in their rhetoric to follow the true precedent.
What does a political party represent?
Political parties represent differences in governing philosophies and competing factions arguing about those philosophies, just as various groups, or wings, within those parties contend with each other to form and articulate which philosophical variants will be the banner flying over the party, called its platform.
Ergo, when the President if of a different political party than the ruling party of the Senate, there exists a fundamental difference of political philosophy. This is often the case when the House and the Senate are controlled by different parties, as we have currently, which is so common and important that we even have a special name for it: a divided congress. There is no real name for this division between the President and the Senate, being that they are in different branches as opposed to Congress, being the House and Senate and both being legislative.
When it comes to a Supreme Court nomination, we suddenly have all three branches of the government involved simultaneously, the executive, legislative, and judicial. The only part of the government the Founding Fathers completely left out of the nomination process is the House of Representatives.
The House being both legislative and most directly connected the people, it is naturally anticipated to be the most political and contentious of all the institutions of state. Thus it is not an accident that they were left out of the nomination process. It was intended to lessen the political raucous and hyperbolic voices by excluding the most vociferous from the arena.
It is not only natural, but right and just that when an executive and legislature agree in their political philosophy that they should attempt, nay strive, to instill that philosophical perspective within the judiciary.
It is just as obvious to any sentient observer that the contention of those philosophies between a divided executive and legislature should be of a greater political importance than the normal process within an election year than without.
While the Senate is generally inclined that any president, even one to whom they are philosophically opposed, ought in the regular course of affairs attain proper consideration and a due deference to their nominations to executive and judicial posts, even unto the Supreme Court. In the midst of an ongoing election the Constitution itself grants to the sent the power to withhold their consent, or even merely to delay their votes of assent.
Indeed, there is nothing Constitutionally prohibitive of the Senate denying their consent to any appointee of a President throughout his entire term or terms in office, but such would be a gross affront to the decorum of our republic. However, I cannot see any legitimate reason that such a delay, so often and so repeatedly employed in the past when the branches are so divided should be an affront to our sense of justice an fair play in the political tussle.
Nor can I see any political or philosophical benefit to not going forward with an appointment to the Supreme Court when the branches are not so divided. The very purpose of a politician is to seek to advance their political philosophy. What insanity is it to tell the politician that he may not advance that very political philosophy for which he was elected by his constituents?
What possible advantage is there for a politician, or his constituents, to delay until after an election an appointment to the third branch of government just on the possibility that someone opposed to his philosophy might then take up the position? Indeed, one might say it was a dereliction of his duty for a Senator not to advance his political philosophy when and where the opportunity presents itself.
There are those who will say that the appointment of a Justice ought not be political at all, and that such a cynical view of the appointment process should be eschewed in favor of a more genteel and amicable approach. There are those who would respond that the very persons advocating such would be the first to push through such an appointment if the roles were reversed.
I am more inclined to point out that if the position of Justice were not political as they are trying to pretend, then this would not be an issue at all, delay or no delay. Their very argument of the point belies their own cynical political agenda, cynical because their reasons stated are so obviously not their real reasons.
The nomination can, will, and should go forward and a new Justice appointed this year by President Trump over the howling protests of those on the political left. Were it a Democrat in office and a Democrat controlled Senate, the very same thing would happen, and has in the past.
“This time is different”, decries the leftist, because Roe v. Wade hangs precariously in the balance. They said the same thing with the last Justice, but their fears were proven specious.
However, for the leftist reader, take heart, President Trump has already appointed two Justices to the Supreme Court, and they have both been extremist far-moderates in their decisions thus far and for the foreseeable future. I expect no different with this next nomination, even the names I have seen bandied about bespeak a token female to maintain the gender balance of the Court.
At best or worse, the court will move . . . slightly more to the center.
