Friday, July 6, 2018
Why the Kerfuffle Over the Supreme Court Appointment?
Roe v. Wade Pro-choice v. pro-life Roe v. Wade is the litmus test for Democrats. Other issues are affirmative action, environmental protection, immigration, labor rights, LGBTQ rights, police actions, social justice, and voting rights, but Roe v. Wade is the ultimate litmus test. No political leeway is allowed on that issue. The jurisprudential debate is simple. The liberals believe the Constitution is a living document, to be changed with the times - by judges if necessary. The plain words of the Constitution are no longer binding. They are activist judges. The conservatives follow the Justice Scalia perspective. It’s called originalism: follow the words and intent of the drafters to the greatest extend possible. The United States is governed by the Rule of Law, not the Rule of Man (Woman). If the Constitution means whatever five justices want it to be, then we are no longer governed by the Rule of Law and our liberties can easily disappear rather than expand. The path to changing the Constitution is through the Amendment Clause rather than by judicial legislation. The amendment process is very difficult; only 27 amendments have been ratified in 229 years. The amendments include freeing the slaves (13), granting citizenship to the feed slaves (14) and the voting rights to African Americans (15) and women (19) the right to vote, eliminating the Poll Tax (24), the direct election of Senators (17) and the first ten amendments, known as The Bill of Rights. The 18th Amendment, Prohibition, was a bad one, being repealed by the 21st Amendment. The 16th Amendment provided for the income tax. The 26th Amendment lowered the voting age to 18. The 22nd Amendment limited the President to two terms of office. The constitution is not a declaration of social justice, but justices, such as Justice Sotomayor believe it is. Thus it can be stretched and rewritten as they wish as long as they can win a majority vote of the panel, five out of four on the United States Supreme Court. Justice Kennedy was the fifth and deciding vote in many cases this year. The Warren Court dramatically rewrote the Constitution by creating new rights. Democrats realized that they could achieve through the judiciary that which is impossible legislatively for human rights, social justice,and victim compensation. Five Supreme Court justices can rewrite the Constitution as shown by a series of 5:4 decisions. Five Supreme Court justices can affirm the Constitution as adopted. A change in justices can turn a 5:4 decision into a 4:5 decision and vice versa. What goes around, comes around in politics. The Democratic Senate under Senator Harry Reid eliminated the filibuster for district court and court of appeals judges so that they could stack the lower courts with liberal justices. This Republican Senate under Senate Majority Leader Mitch McConnell has eliminated the filibuster for supreme Court justices. Thus Democrats have to mount a vicious full court press in an attempt to deny a ninth justice, a conservative justice to the Court even before they know who the nominee is. Justice Anthony Kennedy recently served as the swing vote in many critical decisions. Many thought he was unpredictable, but in fact he was a strong adherent of First Amendment Rights, personal liberties, and often the environment. Thus his strong support of Roe v. Wade and gay marriage. It is widely believed that Justice Kennedy would have joined the conservative block in striking down capital punishment. Elections have consequences. The last four Supreme Court confirmations did not change the composition of the Court: two liberals for two liberals and two conservatives for two conservatives. The sturm and drang was political posturing those times. This time the belief is that an appointment of another justice like Justice Neil Gorsuch will change the balance, perhaps for decades. The fear is also that another justice, probably one of the liberal justices, will leave the Court during the next 2½ years, giving President Trump an even greater chance of changing the Court. That works both ways though. Liberals are concerned that a majority of the Court will routinely reverse some of the liberal interpretations that stray from the meaning of the Constitution. The standard for Supreme Court appointments was deceptively clear not that long ago. The President would appoint the best qualified person, usually from the President’s party. That meant a white male Protestant. The Court is now diverse by ethnicity , gender, race and religion. In fact, the present Court has only one Protestant, Neil Gorsuch, who was raised Catholic, but attends Episcopalian services. The standard now is the best politically qualified appointee who can most likely be confirmed. Conservatives do not want another Justice David Souter on the Court. He was billed as conservative, but was in fact liberal all the way. Someone did not do due diligence. President Eisenhower called Chief Justice earl Warren his worse appointment. He could also not have been too happy with Justice William Brennen. The odds are that President trump is not going to ask the candidates their view on abortion. Nor are they likely to volunteer it. They will probably talk about their judicial philosophy – that of Justice Scalia. My view on Roe v. Wade is that of Professor Ruth Bader Ginsberg. She liked the outcome, but believed it was wrong for the Court to do so. I believed then, as I believe today, that issues as contentious as abortion and the right to life should be decided by the body politic, be it by the legislature or a referendum of the people, as can be done by voters in California. Judicial legislation does not resolve these issues. A different problem exists in the Court reversing Roe v. Wade. The decision is based on Griswold v. Connecticut, which granted a right to privacy in the marital bedroom, and since been expanded. It will be difficult, but not impossible for clever jurists, to reverse Roe v. Wade without impinging on Griswold v. Connecticut. Even Judge Robert Bork in his confirmation hearings said he would not reverse Griswold v. Connecticut. His nomination was still defeated, with Senator Kennedy launching a vicious attack on him. The attacks on the distinguished judge became known as “Borking.” Their nominees will be closely scrutinized by both sides, looking for even a single word or past act that might endanger their nomination. This nominee, he or she, will be Borked. It will probably make the hearings on Justice Thomas seem mild. Too much is at stake for the Democrats. They must fight to the end on this nominee.