And now, a word about the Supreme Court….
What you are going to witness are a few things. First, the nomination of a Supreme Court Justice. Second, no matter who it is, unless it is a liberal justice, a dogfight of epic proportions. The Democratic Party will scream until they rupture vocal cords that the new choice and confirmation be delayed until after the election. There is precedent for that. When President Obama had the opportunity to nominate a SCJ prior to the 2016 election (Merrick Garland), the Republicans, who held a majority in the Senate, said they would not vote until after the election. Mitch McConnell stated he wanted to “give the people a voice in filling this vacancy”. In the end, the vacancy wasn’t filled until after the election. President Trump nominated Justice Neil Gorsuch, a conservative, and he was chosen. Needless to say, the Democrats cried foul, and with good reason as the President does have the power to nominate someone prior to an election, with the reasonable expectation that confirmation would shortly follow. It didn’t. Pure, unadulterated politics.
During President Regan’s last term, the Democratic controlled Senate voted and confirmed Justice Anthony Kennedy to the Court by a vote of 97-0, so that action also created precedent in that a SCJ can be nominated and filled before an election. Justice Kennedy was rather a moderate on the Court before his retirement in 2018, so it wasn’t too much of a stretch for his confirmation.
The fact is that the President can, and in this case, will, nominate someone to fill Ruth Bader Ginsburg’s seat. The Senate, according to Mitch McConnell, will work to confirm the nomination. Let’s get this right: Nothing about this is wrong, illegal or unconstitutional…nothing. However….
The fact is the biggest problem for the left is the concern that should a conservative Justice be confirmed, Roe vs. Wade will be overturned. That landmark case stands far above the rest for liberals, and every attempt will be made to ensure no nominee is confirmed before the next election, no matter what the Constitution dictates in order to preserve that decision.
While many on the right view the Roe decision as simply wrong on its face, that decision was made with a very liberal court seated, one whose decisions had far reaching effects even to this day. While the Court has somewhat moderated its power during the intervening years, the fact is that liberal justices tend to take a more activist approach rather than strict constructionist Justices such as Clarence Thomas, and this is what has Speaker Pelosi and those on the left climbing the walls.
One quick note about Roe v. Wade. If the decision was ever overturned, it does not mean that abortion would be illegal, rather that states would determine it’s illegality or limits, if any, on the practice. In essence, from a strict constructionist point of view, the decision would go where it belonged initially – to the states.
The bigger question that Americans should be asking is why choosing a Supreme Court Justice is an issue at all. The Supreme Court is supposed to be neutral when it comes to political affiliation. They are to take cases (the Court chooses the cases it will take) and adjudicate the constitutionality of said case, that’s all. They are not a body which, through its decisions, is to make law, overturning our elected officials. When their political stance influences their decision, and that decision overturns said legislative or executive action, that is considered judicial activism. There have been times when this activism has proven positive, such as the landmark case Brown vs. The Board of Education (1954) wherein the Court found Plessy vs. Ferguson (1896) unconstitutional, thereby eliminating Jim Crow laws, or even Miranda vs. Arizona (1966) which established the reading of one’s rights before arrest.
But, judicial activism is a slippery slope, one the encourages nine people to become a de facto law making body superseding the United States Congress. This is not what the Founders intended, and not what has preserved this nation for over two hundred and thirty years. It is something that the Court has been wrestling with all the way back to Marbury v. Madison (1803) which established judicial review. Judicial activism is, historically, the preview of liberals on the Court, which is why we are witnessing so much wrangling on replacing Ginsberg. The new Justice would sit on the court for many years, and as the appointment is for life, have significant consequences should the Court become more activist favoring conservative viewpoints.
Having said all of that, it should be noted that the President does have the power to nominate anyone to replace a SCJ, and the Senate can confirm that choice at any time as well. Is it hypocritical for McConnell to delay Merrick Garland before the 2016 election and now advocate for a quick confirmation of the President’s choice? Yes, it is. Plain and simple. But, there is nothing in the Constitution that states hypocrisy is unconstitutional. Further, is there anyone reading this that thinks if the shoe was on the other foot, the Democrats wouldn’t do the same thing?
There’s already been talk by the liberal left of packing the Supreme Court should they sweep the Senate and the Presidency in the fall. The Constitution does not specify the number of Supreme Court Justices, but when this has been tried by Democrats, namely FDR, that attempt has been soundly defeated. Under current conditions, as contentious as they are, court packing has a much better chance this time around.
The fact is that politics should play no role whatsoever in the selection of, and adjudication of cases which reach the Supreme Court. The sole decision should be whether or not a case is constitutional in the strictest sense. This has been a struggle, especially of late, but here’s hoping that in the end, the Constitution reigns supreme.