Neilytics: Senate Prepares for Battle, As Democrats Ignore Constitution

As a former attorney with a significant interest in Constitutional issues, I’m just going to say it—the President was right to fulfill his Constitutional prerogative and nominate someone whom he considers qualified to serve as a Supreme Court Justice. And, in my opinion, the Senate should uphold its Constitutional duty to carefully consider the President’s nominee. This really should not be debatable…though, by listening to those on the left these days…you’d think we should hold the next election over the issue. And, indeed, we may…

The President announced his selection, Judge Amy Coney Barrett, a sitting Judge on the U.S. Court of Appeals, a law professor at Notre Dame, and a former law review student who finished first in her graduating class. And, as a mother of 7, have an outstanding career with the pressures of raising a large family, thereby exemplifying many values we deem essential. In fact, if confirmed, she will make history as the first mother of school-age children to sit as a Justice on the Supreme Court.

The POLITICS of the Moment Ignores Our Constitution

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“How dare Donald Trump gets to appoint a THIRD supreme court justice?” the opposition asks.

So, I’ll give you my perspective: There is a vacancy on the court and it should be filled. Period. It’s a slippery slope when you start ignoring the wisdom of the Founding Fathers. For political reasons, it’s exactly what many politicians are doing, and what the Senate Majority Leader has, indeed, done in the past. 

Let me remind all government lawmakers that, when Americans vote for their representatives (Federal, State, and Municipal) Americans are electing them–and empowering them–for a full term. The mere proximity of the next election is nowhere to be found in our Constitution.

Though the Democrats are citing polls that suggest many Americans don’t want a judge chosen ahead of the election, I have news for them; it doesn’t and it shouldn’t matter! Governing by-poll reduces everything to a simple yes or no. It eliminates depth and perspective, nuance and complexity, and is an insult to the American electorate. This is why we select representatives and why we have elections. If Americans don’t like the political direction of the Nation, including the courts, it is their privilege to vote in November to initiate change.

Until then, it is the obligation of our current elected officials to carry out the obligations and powers we conferred on them when they were elected; and to which those voters were entitled to expect. When the President makes a nomination and the Senate votes whether or not to confirm, they are carrying out the political will of the People.

McConnell Is Quite Right to take up the nomination of Judge Barrett… But Was Quite Wrong not to do the same for Judge Garland 

Nonetheless, let’s be clear: I fault both sides on Capitol Hill for turning their Constitutional obligations into a game of political football. In the context of what is going on now, I will say this: Senator McConnell was wrong last time. The President (then, Obama… with whom, as you know, I had significant issues) was carrying out his duty to put forward a candidate. At the time, it was Merrick Garland–and the Senate should have carried out its duty to take up the nomination. As noted, Senators are elected for a full term. The term and obligations don’t stop before the next election. If they didn’t find him qualified, they could have voted not to confirm him… but, they should have done the work, held hearings, and put the nomination to a vote.

Meanwhile, it is not up to the people to select a Justice. It is up to their representatives who are elected for a FULL term. The people who had voted prior to 2016 are entitled to believe that their wishes were to be carried out–until the next class took its’ oath of office. 

Unfortunately, for that reason, it’s clear this time around that Senator McConnell’s current position is little more than self-serving inconsistency. The principle is essential in this system. Making up the rules to reach the outcome you want is sad and the problems it will cause will be felt far into the future. As such, Majority Leader should acknowledge that the standard applied in the Garland process was a mistake–a serious error in judgment. 

Spinning Out of Control

Senator McConnell needs to go on record and admit his previous error because, at present, we are spinning out of control. I believe we are still paying for the consequences of Roosevelt’s threat to stack the Court because he wasn’t getting the decisions he wanted. It is a dangerous chess game….and the Democrats are currently threatening a kind of “check-mate” for our entire country by insisting they intend to “stack the court” should they succeed in getting power. 

Keep in mind that, embedded in the fight over Justice Ginsburg’s seat, are important principles of how we operate this nation.  

In the judicial realm, we have long insisted on a mix of principle and predictability. Predictability comes with a fancy legal term–Stare Decisis. It demands that courts give all due respect possible to prior legal decisions. Because no two cases are the same and often take different paths through the system, courts sometimes render decisions that have logical inconsistencies. When these inconsistencies present important constitutional issues, the conflict is often resolved by the Supreme Court. The Supreme Court’s decision, issued from on high, becomes the law of the land and a precedent.  

Returning to Our Roots: The Principles of the Constitution

As such, it is time to find our way back to principle. As I hope I have justified to you, I think the Republicans are correct in asserting they can and should consider a Presidential nomination to replace Justice Ginsburg. 

Except, except, except. When it comes to considering this nomination, they are totally ignoring the temporal argument and standard they applied the last go around. McConnell & Co showed a serious lack of judgment and need to come clean and bring governance back into line… for precedent’s sake.

McConnell needs to admit his error so that “tit for tat” doesn’t become the norm. We must follow the Constitution – outside of political influences.

My Conversation with Trish

As I noted to Trish, in our recent conversation on this event…casting an electoral vote on this single issue obfuscates the enormity of the OTHER issues presented to our elected officials on a daily basis: Which nations we engage with, and how; Where, and when we send our Troops; How we act with respect to issues of national security and diplomacy; How we act fiscally and finance it; Even who we pick to sit on our Courts of Justice. And who is best qualified to act on our behalf on the full range and breadth of what it takes to govern. These are decisions that carry importance to the lives of the people of our nation and our future. And who we select to represent our broad array of interests should not come down to a single appointment.

My Admonition For America

So I have this to say to BOTH sides in Washington; beware what you do. And, as a simple recommendation, when it comes to changing matters of the process to suit the whim of the moment, take your time and think twice. Only when the future is not known will you know that the vagaries of the moment are not the primary factor for abandoning long-held views and procedures.

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