For the faithful, the passing of Supreme Court Justice Ruth Bader Ginsburg is yet another proof of the existence of an omnipresent god.
Only a god with a wicked sense of irony would allow the successor of Notorious RBG to be chosen by Felonious DJT a/k/a Donald John Trump.
And yet, that is the way it is.
Article II Section 2(2), with reference to the powers of the president, states in part, as follows, “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
Felonious DJT is the president. With the advice and consent of a Republican controlled Senate, he is authorized to appoint a judge to succeed Notorious RBG.
End of story.
Or, if there is any honor or sense of country before party left inside the Washington beltway, is it?
The Constitution read the very same in 2016 when a previous president, with eight months left in his term, nominated a judge to succeed the late Anthony Scalia.
The Senate, with a Republican majority, never gave nor withheld its advice and consent. President of the Senate Mitch McConnell, simply blocked consideration of the president’s nomination from ever reaching the Senate floor for discussion, much less a vote.
At the time, there was much chest thumping in GOP circles about the people’s right to a have a voice in the selection process by holding up the Supreme Court appointment until after the presidential election eight months down the road, thus confirming, or not confirming the president’s continued ability to make nominations throughout his entire term.
There were multiple pious comments made to the effect that this was a matter of principle, and that future nominations, upon the speaker’s honor, should be treated in the same manner.
Fast forward to 2020. The current vacancy occurred 40-some days before a presidential election. One would think that the high-minded principle that so animated the hearts and souls (not to mention public on-the-record pronouncements) of Senate Republicans in 2016 would continue to be operative. The people would confirm the president’s choice by re-electing him five weeks from now or, should he be defeated, demonstrate that the choice should be left to a successor.
Of course, this is not what is happening. Felonious DJT and his Republican Senate enablers are falling over themselves in a white heat to jam a nominee though the process, perhaps by election day, but for sure, by the end of the current presidential term in January of 2021.
We are told that there is a material difference between the current situation and that which existed in 2016.
In 2016, the Senate was controlled by Republicans and the White House by Democrats. Therefore, Republicans had it within their power to thwart the Democrat president, not by rejecting his nomination, but simply by refusing to act upon it. Today, the Senate and White House are held by the Republicans. Therefore, the Republicans have it within their power to act favorably on their fellow-Republican’s nomination and are fully justified in doing so.
Let us be clear. There is no language in the Constitution that alters a president’s power to make a nomination with the expectation it will be acted upon, up or down, by the Senate. The hair-splitting about who controls what is all extra-constitutional. It is nothing more than an attempt to weave a fig leaf to cover a raw exercise of naked power.
It ill behooves a party that takes pride in endorsing an originalist view of a Constitution that consciously divides power into three branches of government to take the position that power justifies all.
It invites all sorts of future mischief.
Should the president be re-elected, but the Democrats seize control of the Senate, what would prevent them from refusing to act on presidential judicial nominations from Day One of the new term?
If the ability to do something is sufficient rationale for doing it, how would Republican lawmakers in a Democrat-controlled Senate with a Democrat president react to statehood for Puerto Rico and the District of Columbia – a move that would all but guarantee four more Democrat senators and an unknown number of Democrat representatives and Democrat-leaning electors?
It has been a criticism of this administration, encouraged by a complicit Senate majority, that it acts transactionally, doing what seems best for Mr. Trump and friends today without sufficient regard for future consequences.
Since the future of the Republic is at stake, and whether we will be a country ruled by a constitution rather than partisanship, maybe it’s time to consider this: Even if a thing can be done, should it be done?