The Coming Storm? The President, McConnell, the Left, and The Court
Our nation is poised on the brink, once again. For anyone who felt that 2020 could get no more contentious, troubling, and hazardous… hang on and hold my beer. After months of bitter divisiveness, partisan artillery bombardment, accusations of racism and intolerance, and widespread destruction, we find ourselves in a moment in history which will be dubbed a “Constitutional crisis” by every major (and minor) media outlet in the days to come. But is it really? Does the vacancy of a seat of the Supreme Court truly rise to the level of “crisis”?
Before we get too far into this discussion, let’s state the obvious. Justice Ginsburg was a pivotal and transformational figure on the US Supreme Court. Her writings, teachings, and decisions will be studied for decades to come. More than simply a Justice, Mrs. Ginsburg was a remarkable woman, humanitarian, best friend to Justice Scalia, and a beloved wife, mother, and grandmother. We must never lose sight of both her service and humanity. I may be ideologically opposed to many of her positions, but I will always respect her accomplishments.
Regardless of our grieving process as individuals, Justice Ginsburg was a public figure in the service of the United States. As individuals, we must take a moment and work through our personal feelings of loss. As a nation, however, we must push forward with the matters of state. When President Kennedy was shot, President Johnson assumed the office within minutes, and was sworn in within hours. The process of succession is not a means to forget or reject the memory of the fallen, but rather an homage to the very principles they served for as enshrined within the Constitution.
With that… back to the mater at hand: the looming battle, or “crisis” as it will undoubtedly be characterized by all state-media outlets. With a shrug, let me simply say… I neither see a crisis, nor do I foresee one. Aristotle once said, “The law is reason free from passion”. In that spirit, and in tribute to Justice Ginsburg, let’s proceed down the legal process, free from passion.
Friday, a Justice of the Supreme Court passed, creating a natural vacancy. According to the Constitution, the President has the authority to nominate Supreme Court Justices for consideration to the bench. The Senate then has the prerogative to hold hearings, vote, or pass on the nomination. If confirmed by a majority of the Senate, the Justice-nominee then ascends to the Court for a life term. Done.
I looked at the Constitution many, many times in the past few days… each time looking for the important “unless it is Trump” clause, or the famous “Biden rule”, or some restriction on “except during an election year.” I searched to no avail. A plain reading of the Constitution states that the powers are vested in the President and Senate. Period.
The problem does not lie in a plain reading, however. The problem lies in the politically engendered, revisionist views infused into the Constitution through the “living document” belief. For those who do not know, the “living document” concept is one where the Constitution and/or laws change in meaning over time, based on social morays and predilections. This lies in contrast to the “strict constructionist” view which states that the law means what it says on the page (four corners) as well as what is meant at the time of passage by a plain-word reading. As the left views the Constitution as a living document, it actually says what they want it to say, need it to say, or feel it should say. You may think that the words on the page mean something… but it is up to “the scholars” to interpret the words for what was intended. Yep… today’s ultra-progressive left is hardly more than a 21st century throw back to the ancient Mesopotamian Oracles. But I digress….
So what are the top fallacies already being said and on tap?:
- The President should wait until after the election so that people have their say.
The President’s term of office is both fixed and clear. The 20th Amendment of the Constitution clearly lays out that the President is the President until noon on January 20th. There is no special provision as to what powers degrade over time. There is no provision restricting the President to a figurehead as soon as the election process begins. Until noon on January 20th, the President is President. Period.
- Mitch McConnell’s hypocrisy is harmful to the Republic.
Mitch McConnell’s actions are fully in compliance with every process prescribed by the Constitution. The Merrick Garland situation played out as prescribed: The President nominated and the Senate exercised its prerogative to hold hearings, vote, or pass on the nomination. There is no hypocrisy, there is only the playing out of the rules as laid out.
- Nominating a Justice cannot be done by election day, November 3rd.
This is clearly just an excuse. President Trump has been transparent about his possible nominees. The various news agencies have been running opinion pieces on the leading candidates since an hour after Justice Ginsburg’s passing. Senators can and should do their job. Seven weeks is plenty of time.
- President Trump and Mitch McConnell are dividing the country by ramming through a nominee
President Trump and Mitch McConnell are following the law. As novel a concept as that is in DC, it is nevertheless the manner by which we are supposed to do things. By having a hate-circus play out in Washington, as it did during the Kavanaugh hearings, the left is dividing America, not the President.
Let’s be clear, this looming crisis is not about the law, the Constitution, or judicial customs. This entire looking battle is being brought about by:
- The hubris to believe that any seat “belongs” to an ideology. The seat belongs to The Court, the nation, and the people. It is no more Justice Ginsburg’s seat than the Massachusetts Senate seat “belonged” to Ted Kennedy.
- A failed project, 90 years in the making. Since the 1930s and President Roosevelt’s attempt to pack the court, the left has worked valiantly to elevate the US Supreme Court to the stature of a super-legislature. Major decisions have taken the place of major legislation. Activism has taken the place of legal precedent. Ninety years later, when it all seemed as if it was within their grasp, it is instead all coming apart at the seams. President Trump and Senator McConnell have filled a record number of lower court seats with Conservatives who “call the balls and strikes”, and have been able to nominate and pass two – now three – Supreme Court Justices.
- The looming Court battle after the election. After months of behind the scenes maneuvering, attacking, posturing, and parading and preening, there is a real possibility the next President will be decided after a Supreme Court decision… much like Bush v. Gore. The real crisis has been playing out in slow motion before our eyes, as thousands of elections throughout the United States are being tossed into chaos thanks to the “ramming through” of mass ballot mailing and harvestings laws. This lack of clarity and high level of confusion will result in lawsuit after lawsuit, culminating in the Supreme Court. The idea of an additional four years of a President Donald Trump is terrifying to the Democrats.
So in short… there is no looming crisis, except for a political one. President Trump has both the right and obligation to present a nominee to the High Court. Senator McConnell has the right to exercise his prerogative, which I assume will consist of his holding hearings and subsequently a vote. So… where’s the crisis?