When I pen these columns, I try to keep a measured and respectful tone, even when I have serious disagreement with the person or issue that is the subject of the column.
I am the first to admit that I sometimes (or maybe more frequently) fall short of achieving this goal, but I try. Really, I try.
However, there are times when what we see happening is so frustrating, when the actions of some in power are so duplicitous, that the outer boundaries of civility are sorely tested.
Let us talk about the confirmation of Supreme Court nominee Amy Coney Barrett.
Cutting to the chase, the current process, albeit being pursued with unseemly haste, is constitutional. A sitting president has a four-year term and at any point in that term he (or she) has the absolute constitutional power to make a nomination. As a matter of comity, they should at least have a reasonable expectation that their nominee will, at a minimum, be given a hearing.
Should the current hearings lead to a Senate vote confirming the nomination, the appointment of Judge Barrett to a position with lifetime tenure is entirely constitutional.
As suggested in an earlier column, the question is not “If” the Barrett nomination can go forward, but, as a matter of fair play or honor, “should” it go forward?
In 2016, another sitting president made a nomination to the Supreme Court with 269 days left in his term. He had the absolute right to make the nomination, and he had the reasonable expectation that the Senate would act upon that nomination – up or down.
That expectation went down in flames when one man, Senator Mitch McConnell, decided that not only would there not be a vote up or down on the nomination, there would not even be hearings. Using his power as Senate leader, and with the complicity of his fellow Senate Republicans, McConnell simply sat on the nomination and ran out the clock on that president’s term of office.
To give some political cover to their actions, the Republican caucus concocted an argument that when a Supreme Court nomination is made in a presidential election year, action on that nomination should be held until after the election “to give the people a chance to make their choice known.”
While there may be some merit to this argument, there is nothing in the Constitution that supports it. For a party that prides itself in proclaiming it follows the law as written, it is exceedingly strange that it relies upon adding to the letter of that law something that is not currently there as authority to support its position.
Moreover, no less a personage than the senator from South Carolina, Lindsey Graham, is immortalized on tape sanctimoniously proclaiming that if an election year vacancy occurred in the next administration, they would similarly withhold action until after the ensuing presidential election. He challenged the audience to hold him to his word. No Republican senator publicly took issue with this promise.
We now know what that word is worth because he now is a leading figure in ramming this nomination through the confirmation process. In this instance, Senator Graham has shown himself to be a prevaricator – which is to say in perhaps less respectful language, a liar.
But no, the two situations are not identical, proclaim Senators McConnell and Graham! In the former case, the president and the Senate majority were of different political parties and it was expected by the founding fathers that in such a case, no action would be taken on the nomination. In the present case, the president and the Senate majority are of the same political party and therefore, action on the nomination is appropriate.
Two things. First, there is nothing in the Constitution that supports this construction. If the founders were in favor of such a process, they would have said so. Second, at the time the Constitution was written, there were no formally constituted political parties. If anything, it is more reasonable to assume that the expectation of the founders was that with a nomination of such importance, public officers would set factional differences aside and act in the best interests of the country rather than count noses to determine who was in the majority and who was in the minority.
For the record, again, the Republican caucus is acting constitutionally. But, to say it one more time, if their word is to carry any weight in the future, is it acting wisely?
On Monday Republican Senator Charles Grassley solemnly warned that if the Democrats soon hold the White House and congressional majorities (oh, wait, that pesky election), they would (horrors!!) “pack the court” in a balancing effort to respond to a likely 6-3 conservative super-majority.
I am not saying the Democrats should do this, but if the Republicans are using their constitutional powers to empanel Judge Barrett, what is to prevent the Democrats from using the power of the majority to add members to the court? After all, historically, the number of Supreme Court Justices has gone up and down over time.
Slippery slopes can have unintended consequences for everyone involved.
One final thing, while Senator Grassley’s concern over court packing is admirable, the facts are that of the 23 Supreme Court appointments since 1969, 19 were made by Republican presidents, and four by Democrats.
When it comes to packing courts, the good senator apparently knows whereof he speaks.