Whoa There!

The Republicans led by Mitch McConnell in 2016 blatantly flaunted the clear and undebatable Constitutional requirement that the Senate must vote, in a timely way, up or down, on a proper Presidential nomination for a Supreme Court (and, for that matter, any Federal Court) appointment.

Using a simple delay tactic dubiously based on the election calendar and a rule about ending judicial filibusters (though not yet for Supreme Court seats), he denied Obama’s nomination of outstanding Circuit Court Judge Merrick Garland when the Democrats in the Senate still had a majority to confirm.

If it were not for the extreme and long term significance of that appointment at that time, one — no matter his/her political views — could almost be breathtakingly admiring of McConnell’s chutzpah and gall in attempting and pulling off his astounding stunt.

But, ‘what goes around-comes around’ and here we are two years later with a very similar situation in reverse.

We are a nation committed to the rule of law, to our veritable Constitution AND to precedents that arise along the paths of politics and justice.

Even some hard-right Trump supporters will privately say the Senate process of 2016 was wrong and to be fair this year a confirmation vote should not be held until after this fall’s election to give the voters a real voice in the vitally important Supreme Court seat. To do otherwise would surely taint the prestige and authority of the Court down the road. As polls have repeatedly shown, the Supreme Court holds a special place of respect among our institutions, on both the left and the right, as an unbiased arbiter of justice. Democrats didn’t abandon that view even in the wake of Bush v. Gore.

That in turn could lead to all kinds of ways to change the composition of the Court. Remember, for example, FDR’s effort to expand the size of the Court, which was only avoided when FDR backed away after a timely Court retirement. It was said at the time that ‘a stitch in time saved nine’.

Accordingly, what is really at stake today is not just a few important precedents, but the forever forward precious standing of the Court in our constitutional system. Roosevelt perhaps mistakenly would have robbed the court of its independence virtues but it saved the day by its timely compliance—as a virtuous lady might have under comparable circumstances.

Republican and Democratic Senators should stop and pause to consider these thoughts. Despite all indications that Republicans will still hold the Senate this November, there is a good case to be made that riling up Democratic voters even further by pushing the nomination through might be in the longer run a greater threat to the Republican majority than delaying further gratification to that base for a few months. But that does not protect the Supreme Court’s reputation.

Regardless of any political implications, it is hard to believe that any single Senator –R or D–could put his or her personal tenure ahead of the country’s and the Court’s vital interests when compared to the colossal damage that is about to happen to our most revered institution—up to now—the Supreme Court.


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