Week 11: Supreme Court
It is not quite time for the traditional “October Surprise,” so in this election it is reasonable to assume that there will be more to come. In this election, though, we are experiencing a “September Surprise” with the passing of Supreme Court Justice Ruth Bader Ginsberg. In today’s essay, we will not explore Justice Ginsberg’s philosophy or rulings; rather, we will discuss the process of appointing her replacement.
The parallel between this election and that of four years ago surely is not lost on us. In 2016, a vacancy on the Supreme Court became open with the death of Justice Antonin Scalia in February of that year. Following the passing of Justice Scalia, then-President Obama nominated Judge Merrick Garland to fill the Supreme Court vacancy. The nomination was never brought to the floor of the Senate, because the Senate Republicans said it was inappropriate to consider such a nomination with a Presidential election looming. They maintained that it would silence the voice of the electorate in the appointment process.
Perhaps the Republicans were recalling the passage of the Affordable Care Act, more commonly known as Obamacare, on Christmas Eve 2009. The Democrats had lost control of Congress in the elections that November. The People had spoken, and they were soon to be turned out of office. Despite the People’s voice, as the election was much about socialized healthcare, the Democrat Congress voted to pass sweeping health insurance legislation, knowing it would otherwise die on the vine in the incoming Republican-controlled Congress.
By way of a little more background, the Democrat-controlled Senate in 2013, used a procedural mechanism, Rule XX, commonly referred to as the “nuclear option,” to require only a simple majority to provide advice and consent for court nominees, as opposed to the supermajority envisioned by the Founders for matters of such weighty import. The so-called “nuclear option” also sets aside Senate Rule XXII, requiring 60 votes to close debate prior to a vote.
In this election season, the Democrats may reap what they have sown. Be assured, though, that the tables will someday turn. Because neither party deals with the other in good faith, each eventually gets what it deserves. To borrow from and Scripture and to twist it just a bit, those who live by suspension of the rules, shall die by suspension of the rules.
For approximately a decade after Independence, our new nation was governed by the Articles of Confederation. As is often the case, once you live with a new approach to doing something (e.g., self-governance), you come to discover the flaws and foibles in the approach. Federalist Papers 15-22, are discussions of the shortcomings of the Articles of Confederation, thereby supporting the case for a new Constitution. The Federalist Papers, a collection of 85 essays discussing the rationale behind the provisions of the new Constitution, were written from Saturday, Oct. 27, 1787 to Wednesday, May 28, 1788.
Federalists 76 and 77 speak directly to the appointing power of the President. Nowhere in these essays is it suggested that a President not make nominations if he or she is in the last year of his or her term.
Let us explore this further. Prior to entering office, each newly elected President takes the following oath, as written in Article II, Section 1 of the Constitution, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Nowhere in Article II does it state that the President’s mandate to faithfully execute his or her office ceases or diminishes in the year final year, months, weeks or days of his or her term in office. Nor do Hamilton, Jay or Madison, writing collectively under the nom de plume “Publius,” suggest in the Federalist Papers anything to this effect. It is clear. When a person is serving as President, he or she is duty-bound to fulfill that role, including the nomination of justices to fill vacancies on the Supreme Court, regardless of the point in time of his or her administration.
Article VI of the Constitution also requires of legislators, at both the national and state levels, to swear or affirm their support of the Constitution. Consequently, members of the Senate are duty-bound to perform their collective role in the process of advice and consent. To that point, I think it was a mistake for the Senate, in the waning days of the Obama administration, to forgo a vote on Judge Garland. If the Republicans didn’t want Garland, they should have voted so. I suppose it was easier and politically safer in the moment to prevent Garland’s nomination from coming to the floor of the Senate.
Be that as it may, it now poses a – what is the correct word? Dilemma came to mind, but it is not a dilemma for unscrupulous people to reverse a position that was supposedly set on principle. It really just poses a public relations issue, one Senate Republicans will easily pass through, just as Democrats have passed through similar ethical lapses in the past.
In the present situation, some are calling attention to the reported last wishes of Justice Ginsberg that her seat not be filled until after the election. As much as it may tug at one’s heartstrings – the dying wish of an accomplished person – it should have no effect in the affairs of state. I understand that she would, as anyone may, want to preserve her legacy, and her wish may have been expressed only in a private sense; nevertheless, a Supreme Court justice should know, better than most, that we are a nation of laws, not of men or women and their whims. I humbly beg your pardon, kind reader, if that critique seems harsh. I do believe, though, that it is an accurate perspective.
In short, a President is sworn to execute the office, while he or she is in office. Similarly, the Senate is sworn to do its job. Let it be so and let the political chips (which often seem to be more akin to cow chips than to decisions made in fidelity to the will of the people) fall where they may. In contrast, comparatively little concern is made over dubious pardons made in the final minutes of a President’s term. Why should any other political decision, made in the execution of Presidential duties, be different.
As November draws nigh, consider which candidates – for any office – understand the principle and the duty to execute the office they seek, and which blow with the political winds that stink of expediency. Then, fellow citizen, vote accordingly.