- Where in the Constitution, exactly, does it prohibit a president from appointing someone to fill a vacancy on the Supreme Court in an election year?
- Previous American presidents—including Thomas Jefferson, Abraham Lincoln, and Woodrow Wilson—nominated Supreme Court justices in an election year, and the Senate confirmed those nominees before the election.
Other American presidents—including John Adams, Ulysses S. Grant, and Calvin Coolidge—nominated justices after the election but before the inauguration; and those nominees, too, were confirmed by the Senate.
Were these American presidents guilty of some illegal or damnable transgression—or instead, were they exercising their lawful authority under the Constitution?
- Assume the shoe was on the other foot, so to speak. It is Sept. 18, 2012. Obama is president; he is up for reelection but trailing in the polls; the Democrats control the Senate but risk losing control after the election; and Justice Scalia has died.
Would not Obama nominate a new justice to replace Scalia, and would not Senate Democrats act to confirm Obama’s nominee?
- Long-standing Senate tradition (not law) allowed for use of the filibuster to prevent judicial nominees from being confirmed by the Senate. Stopping a filibuster requires 60 votes.
Practically speaking, given the makeup of the Senate, to reach the 60-vote threshold typically requires at least a bare minimum of bipartisan support.
However, in 2013, Democratic Senate Majority Leader Harry Reid (D-Nevada) prohibited use of the filibuster for most judicial nominees. Republican Senate Majority Leader Mitch McConnell (R-Kentucky) then followed suit in 2017 and eliminated use of the filibuster for Supreme Court nominees.
This allowed Senate Republicans to confirm Trump appointee Brett Kavanaugh with just one Democratic vote; and it will allow Senate Republicans to approve Ginsburg’s replacement with, potentially, no Democratic votes.
Given this history, was it a mistake for Harry Reid to eliminate the filibuster for judicial nominees? Did this not pave the way for Senate confirmation of Trump’s three Supreme Court nominees?
- Since the middle of the 20th Century, Democrats and leftist have relied upon the courts, or the judicial branch of government, to achieve political and public policy objectives that they never could have achieved legislatively—for example:
- banning voluntary school prayer;
- requiring abortion on demand;
- mandating various and sundry environmental protection measures, school and prison reforms; and now:
- dictating federal immigration policy and state voting requirements.
Has it been it a mistake to rely so heavily on the courts and the judiciary to achieve your political and public policy objectives—especially since Republican court appointees are often unwilling to accede to assertions of judicial supremacy vis-a-vis the executive and legislative branches of government?
- Do you believe there are any limits on the jurisdiction of the courts, or is every political and policy issue justiciable?
- Some Democratic leaders—including House Judiciary Committee Chairman Jerry Nadler (D-New York)—have called on Senate Democrats to expand the size of the Supreme Court and pack it with more liberal or activist judges.
Justice Ginsburg, however, said court-packing is a bad idea because it would undermine the Court’s legitimacy and weaken public trust in the institution.
Who’s right about expanding or packing the Court: Chairman Nadler or Justice Ginsburg?
- An independent judiciary free of political coercion or control is one of the pillars of American democracy.
Yet in recent years, this independence has been threatened by Democratic Senators such as Charles Schumer (D-New York), Sheldon Whitehouse (D-Rhode Island), and Richard Blumenthal (D-Connecticut), all of whom have warned that unless the Court rules in a “progressive” direction, it risks being brought to heel and radically restructured.
Can we not agree that while we certainly can criticize Supreme Court decisions, we ought to refrain from demanding that the Court rule a certain way or risk suffering some vague but ominous-sounding consequences?
Do not such threats strike at the very heart of judicial independence?
- Some Senate Democrats—including Dick Durbin (D-Illinois) Marie Hirono (D-Hawaii) and Kamala Harris (D-California)—have suggested that practicing Catholics who belong to Catholic religious organizations, such as the Knights of Columbus, should be disqualified from federal judgeships.
The reason: practicing Catholics have religious beliefs that are opposed to progressive orthodoxy on a range of issues (such as abortion and same-sex marriage) where progressive orthodoxy has been incorporated into the Constitution and established as new rights.
The Constitution, however, expressly prohibits a religious test for governmental service; and prominent Catholics such as President John F. Kennedy (a Democrat) and Justice Antonin Scalia (a Republican) have expressly said that their religious faith does not override the oath that they take to the Constitution of the United States.
Who’s right about whether practicing Catholics should be disqualified from the federal judiciary because of their religious faith: Senators Durbin, Hirono, and Harris, or President Kennedy, Justice Scalia, and the Constitution?
- Liberal interest groups and Democratic Senators have viciously and savagely attacked the character and good name of a series of recent Republican Supreme Court nominees—including Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh.
Bork and Alito, for instance, was accused of being racists; Thomas was accused of sexual harassment; and Kavanaugh was accused of participating in a gang rape. The evidence for these accusations was utterly lacking. The charges reflected a partisan political desire to destroy these nominees before they could ascend to the high court.
Can we refrain from the politics of personal destruction and instead, debate the merits, qualifications, and judicial philosophies of Supreme Court nominees? Is that asking too much in this, the world’s greatest democracy?
Feature photo credit: Kevin Dietsch/UPI.