Tuesday, September 22, 2020

Advice And Consent

In what has become a daily, sometimes hourly occurrence, the Left is losing their collective shit again because Trump is poised to name a successor to Ruth Bader Ginsburg. Also as is inevitable, there is a new faith affirming story to go along with this that has been added to the mythology of RBG, specifically that her dying wish was to not be replaced until a new President was installed. Riiiggghhhttt...


I don't know, maybe those were her final words. If that is the case, what a tragic testament to her life that on her death bed she was concerned about politics and preserving the "right" to an abortion. Regardless of whether or not it was true, the Left desperately wants it to be true and so therefore it is and in the same way that a poem on a statue in New York supersedes all immigration laws, so too must RBGs dying wish trump the Constitution. I missed the "fervent dying wish" clause in the Constitution....

It wasn't always this way. Supreme Court justices were replaced on a regular basis like clockwork but then as is almost always the case the Left decides to ratchet up the politicization of the appointment process while accusing conservatives of being the guilty party. In 1987, one of the great legal minds in American history, Judge Robert Bork, was nominated by Ronald Reagan to the Supreme Court and was promptly smeared and slandered by Ted Kennedy publicly without a peep from the chairman of the Senate Judiciary Committee. That Chairman? Senator Joe Biden. History has a funny way of coming full circle. Bork was not confirmed by the Senate and Reagan, in one of his greatest blunders, nominated Anthony Kennedy to the Supreme Court. Kennedy was confirmed by a 97-0 vote and went on to be the usually liberal "swing vote" on the Supreme Court. Kennedy was the deciding vote on Obergefell v. Hodges which created a nationwide "right" for homosexuals to "marry" and he also wrote the majority decision in Planned Parenthood v. Casey which reaffirmed the "right" to abortion. Even Ted Kennedy probably had no idea how influential their shameful treatment of Judge Bork would be on the course of this nation. 

With the death of Ruth Bader Ginsburg, a woman who managed to rule incorrectly on nearly every case that came before the court, there is a chance, however temporary, perhaps not to reverse much of the damage already done but at the least stem the inevitable tide. 

If our country functioned as intended, this wouldn't be that big of a deal but of course our nation hasn't functioned as it should for the better part of 150 years. So instead of having a calm, rational replacement we are getting the latest existential crisis. It must be exhausting for the Left to endlessly charge from one Most Important Event In Our Lifetime to the next, always at a fever pitch. Little wonder these people are insane. Tucker had a good take on the latest over-the-top response, inflamed by the combination of the thought of losing access to their unholy sacrament of abortion and the idea of Orange Mad Bad getting a third Supreme Court pick.


Just imagine if Trump somehow is re-elected and the GOP holds the Senate. He could replace Clarence Thomas who is getting very old as well as Stephen Breyer who is 82. Trump getting five of the nine justices? The tears would flood the earth.

At this point it looks very much like Amy Coney Barrett will be the nominee. She is a good choice, an attractive woman with mostly solid social conservative credentials. She seems mostly reliable on the issue of immigration according to VDare which raised a cautious flag about her Catholic faith and whether she would listen to the church rather than the Constitution. I am not that concerned about that, most serious Catholic I know consider the bishops and current pope to be buffoons, at least on matters of politics. Trump has stated he will announce his nominee on Saturday and unreliable Mitt Romney has indicated he will support that nominee so that might be the ballgame.

That very well could mean outright physical violence to try to stop the Senate from holding hearings or voting on confirmation, something as Tucker mentioned in the video above has never happened in America. Will we see Senators hurt or killed by the Left in an attempt to prevent Trump's nominee from being confirmed? That is a very real possibility.

While the Left was going to go insane if Trump got the chance to replace RBG, having it occur in an election year and so close to the election is really getting them fired up because of the Merrick Garland thing. Garland was appointed by President Obama in March of 2016 to replace conservative legal giant Antonin Scalia. It would have been a huge win for the Left to replace Scalia with Garland but the Republican controlled Senate refused to hold hearings, much less a vote, ostensibly because it was an election year and Obama was a lame duck. Adults know that McConnell didn't hold hearings or a vote because Garland might have been confirmed. It was pure political maneuvering. Gorsuch was appointed by Trump and confirmed, and while he is no Scalia he is a huge improvement over Garland.

To liberals this means that Trump must not be allowed to replace RBG in an election year. I understand why they think that, most of them are dumb as a bag of hammers and think politics is a religion. The big difference is that Obama was facing a Republican Senate. Trump also has a Republican Senate and apparently has the votes. 

The Constitution has very little to say about the appointment of judges. Article II, Section II has this to say (emphasis in red mine)

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That is it. The "judges" of the Supreme Court are appointed by the President "by and with the Advice and Consent of the Senate". That's it. A magnificent use of Federalism here: the justices of the Supreme Court rule on issues as the court of last resort and serve for life but they are appointed by the President who then must get the consent of the Senate. The President gets to appoint the justices but the Senate must approve.

In 2016 Obama got to nominate a replacement, Merrick Garland, as the Constitution provides but he did not get the consent of the Senate, also as provided by the Constitution. The Senate is not required to give consent. The Senate is not required to hold a vote. The Senate is not required to hold hearings. In 2016 they simply indicated their lack of consent by refusing to hold a vote, which is basically the same thing. 

Too bad, so sad.

Was it politics? Sure it was. Duh. It was politics when Nancy Pelosi knelt for violent criminal George Floyd. She didn't give a shit about him and would have called the cops if he was in her driveway but it was political theater. 

Was it legal? 

Abso-freaking-lutely. 

It was legal in 2016. It was legal in 1987. It will be legal if the Senate confirms Trump's pick to replace RBG. 

But shouldn't the American people have a say in the next Supreme Court Justice?

Yes and no.

No, because we are in a republic and don't choose SCOTUS members by vote which is also supposed to help eliminate the political pressures on them and prevent Kim Kardashian from being on the SCOTUS.

But also yes. 

In 2016 the President was elected by the people who had their say in who should nominate a Supreme Court justice, even though I doubt many people voting for Obama thought about that. Obama was elected and he made his choice.

Also in 2016, the Senate had a majority of Republicans who were elected over the prior three election cycles by the people. They had a choice and they chose to not give consent to Obama's selection.

In 2020, we have a President who was elected by the people in 2016 and the Senate is still majority Republican by the will of the people. The President can once again nominate a Justice and the Senate can once again choose to give consent or not.

Take away the hysteria and wailing and gnashing of teeth, and that is what you get. The people spoke by electing Trump and electing a majority of Republicans to the Senate.

BUT MUH POPULAR VOTE!


This kerfuffle is demonstrating once again that most Americas are as ignorant as an iguana about basic civics. Maybe they don't take civics in high school anymore? It doesn't matter how many "popular votes" Hillary got, what matters is that Trump received a majority in electoral college. HIllary's husband Bill only got 43% of the "popular vote" in 1992, 3% less than Trump in 2016, and less than 50% in 1996 but liberals don't think he shouldn't have been President.

The President has the right, obligation and duty to appoint Supreme Court justices when a vacancy occurs. The Senate has the right, obligation and duty to give or withhold consent. 

All the rest of the static is just that, noise meant to obfuscate and try to whip up the liberal base.

1 comment:

  1. One thing that really, really chaps me about the Supremes is that they take a fairly straightforward concept, like, "shall not" and with dozens of rulings over decades turn "shall not" into "must" over time. Wormtongues, the lot of them.

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