Talk About Un-Due Process

Our Constitution was designed to define the ‘process’ that drives and manages our democracy.  From that came our precious expression ‘due process’.

Other than the Bill of Rights, basic ‘policy’ is barely mentioned.

Our forefathers clearly understood the difference as evidenced by what they provided in the Constitution. Their understanding appears far better than today’s many sanctimonious Senators who carry the Constitution in their pockets but apparently have obviously never really fully understood it – or did not want to!

In the past three years we have been witness to shocking un-due process in regard to the ‘advise and consent’ provisions for the Senate over Supreme Court appointments.

With nine months left in his second term, President Obama nominated Merrick Garland to a vacancy on the Supreme Court. Garland was by ALL accounts an extremely well qualified judge with a moderate temperament and record. The Republican leadership in the Senate strongly did not want a moderate justice to replace the originalist firebrand Antonin Scalia, so they simply refused to have any of the traditional hearings for the nomination, which then languished until Obama left office.

There are many lawyers today who still hold the view that by refusing to follow the constitutionally required confirmation process, Republican leadership denied the Country, as well as the Senators of both parties, their right, as well as requirement, to advise and consent – which amounts to an unconstitutional violation of due-process. Some hold that, as a consequence, the Senate effectively waived its duty and right to consent, and Democratic Senators could have raised that waiver, and its consequences in court, which could have put that seat into limbo.

That matter would surely still be in litigation today. When resolved, the question of failure to act at all could have settled the issue for once and all time of the Senate’s specific obligations to act in a timely way in such matters. And such litigation likely would likely have left the seat in legal limbo – not filled and not fillable, until resolved. Thus sparing all of us the horrifying spectacle of today’s opposite and rushed, flawed nomination confirmation process.

Now comes another vacancy and Trump appoints a man coincidently from the same DC Circuit Court as Garland. Kavanaugh also appears to have excellent legal credentials but also has been strongly criticized for fierce partisanship (evidenced in his recent testimony) as well as with suspect integrity. And as everyone in our country now knows, he stands accused of sexual assault on multiple occasions.

This time around, the same Republican leadership took the opposite tack from the Garland nomination, endeavoring to “plow right through” with hearings and votes. The rush to beat the November 6 election clock by denying the Senate both many relevant documents and a complete FBI background check, they committed un-due process. That leaves a real possibility to hand a possible new Democratic Senate majority an opportunity to play the Garland delay game again and again in reverse until Trump is gone.

The Republicans convened a KANGAROO hearing of Kavanaugh and his accuser; with pre-determined plans for a final committee vote the next morning and many Republicans publicly declaring they believed Kavanaugh over his accuser even before either testified.

At least, that was the plan until Republican Senator Flake whose vote was essential, demanded a further FBI background check as a condition for support on the Senate floor and obviously depending on that outcome.

We all know that what goes around comes around. And that is where we are today!

What we have been witnessing is an endless un-due process throughout ALL of this matter.

Un-due PROCESS in performance of constitutional duties is just as subject to judicial review as any other constitutional issue. Recent history demonstrates conclusively that “advice and consent” has been twisted for partisan purposes. To be fair, this probably started with the Democratic blocking of the nomination of Robert Bork in 1987, so there is enough blame to go around, though that does not make it right].

Now, apparently the distortion of this constitutional requirement threatens the integrity of the Court itself.

The present members of the Supreme Court today may not be disposed to interfere, [and separation of powers theories do undoubtedly make it treacherous legal territory]. BUT, if this matter does reach the present Court and they have an even  split vote, this particular appointment in question could NOT be confirmed and the seat would remain unfilled unless and until this nomination was withdrawn and a new candidate nominated and confirmed.

That would effectively put the matter where it really belongs into the hands of the people in the 2018 and 2020 Presidential elections!

Luck to us all!!!


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