The Supreme Court post-RBG


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It is, in general, my belief that the sitting President has the right to nominate a new justice on the death of a sitting justice of the Supreme Court, per the Constitution.

The President … shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court…

It is the President’s Constitutional duty and privilege to nominate a replacement, and it the Senate’s Constitutional duty to offer advice and consent, ultimately accepting or rejecting the nomination in a timely manner. Rejection should be a rare thing – their duty is to consent, unless there is a higher duty not to.

 

With the passing of Justice Ruth Bader Ginsburg, that means that President Donald Trump should has the right to nominate a candidate, and the Senate to consider that nomination.

 

And yet…

 

I have a short memory, with more holes than it used to have. President Obama’s appointment of Merrick Garland to the court seems like ancient history. But these current events bring the memory back. After the death of Antonin Scalia, President Obama nominated Garland to fill the vacant seat on March 16, 2016, with nearly a year left in his second term as President. The Senate, led by Mitch McConnell, refused to consider the nomination, abdicating their Constitutional responsibility to provide advice and consent to the sitting President. This was a clear violation of McConnell’s (and the rest of the Republican leadership’s) oath to protect and defend the Constitution of the United States, an abuse of power only thinly veiled behind the stated belief that a vacancy during the last year of a President’s term should stay open until after the election, and left to winner to fill.

 

I’d mostly forgotten my anger in the fog of time, under the unrelenting barrage of abuses of power coming from the White House and Senate since then. But the removal of the thin veil, as McConnell has casually shrugged off his own precedent, committing to go forward with a vote on whoever President Trump may appoint, has reminded me. Cynical, unprincipled power with no pretense of honor or decency in pursuit of the goal of accumulating more power, is playing out, with the full support of nearly half of my nation, and a large majority of the Evangelical Christian community that was my heritage. It shocks me and saddens me.

 

Cheating, lying, and rigging the system have always been part of politics. But I have really felt that honor, patriotism, and the ideals of justice, freedom, and equity, have been a strong counterbalance in America. Instead, the ideals have been buried in a mulch of bullshit so thick it’s hard to see anything clearly except fear, outrage, and confusion.

 

I’m afraid, I’m angry, and I’m bemused. If the Democrats plan the same kind of procedural games that McConnell did to Obama to save the Ginsburg seat – I’m ambivalent. It doesn’t seem right, but it does seem fair. Not honorable, decent, or just, but fair. Is even fair too much to ask for?

 

I’m going to send some money to McConnell’s Senate challenger, and of course I’ll vote here in Alabama. My signs are out. I’m doing what I can to get out the vote here in North Alabama. I see little chance of any of those contributing to change in Alabama or McConnell’s Kentucky, though. Perhaps there will be a landslide in November? And perhaps the loser will concede? I have some hope, but little confidence. And, whatever the outcome, I’m still concerned for the division, not just in opinion but in observed reality, and what it means for America.