Republicans got it wrong in 2016.
How Senate Republicans were wrong in how they managed the vacant supreme court seat in 2016. And how 2020 is different.
The United States system of government gives us three separate but equal branches of government established in the United States Constitution.
They are as follows:
- The Legislative Branch- Makes the law
- The Executive Branch- Enforces the law
- The Judicial Branch- Interprets the law
The founders gave us this system of checks and balances to keep one branch from becoming too powerful over the others. Of the three branches, only two are elected by the people. The Judicial is given lifetime appointment and is selected by the Executive branch with the advice and consent of the Senate within the Legislative branch. The lifetime appointment is important so Judges and Justices can conduct their work without outside pressures and influence.
Alexander Hamilton wrote in Federalist 78 that “ Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Clearly, Hamilton thought the Judicial branch would be the weakest of the branches. It has no control over making or enforcing law or any control on how money is spent or collected within the federal government.
The court over the years has gained more and more power- and as a result, more and more intense political scrutiny has been placed on nominees that have been selected to fill empty seats.
The political fights over nominees to the courts, especially the Supreme Court have become outrageous, to say the least. Votes for Justices used to be, for the most part, a bi-partisan event.
Justice Ginsburg was confirmed by a vote of 96–3
Justice Scalia was confirmed by a vote of 98–0
Justice Kennedy was confirmed by a vote of 97–0
As long as the nominee was well qualified they, more often than not, enjoyed bi-partisan support in their confirmations.
What changed? Clearly, that question requires a long and tedious answer that I will not seek to flesh out in this article.
However, there is no doubt that both political parties have vastly different views of the courts, especially the Supreme Court. And because of that battles for the open seats have become more intense and offensive.
February 13, 2016, Justice Antonin Scalia passed away at the age of 79 years old.
On March 16, 2016, President Barack Obama nominated Judge Merrick Garland to fill Justice Scalia’s seat.
At the time the U.S. Senate (as it is now) was controlled by Republicans. Quite obviously the Republicans didn’t want to allow Democrat President Obama to be able to place another Justice on the court. Especially one that would be replacing a widely considered conservative justice such as Scalia. And there is absolutely nothing wrong with that. That’s what political parties do right? They both have an agenda on policy and governance and they usually don’t want the other side to prevail. The Democrats would have done the exact same thing if the shoe was on the other foot.
The issue where the Republicans were wrong, for me anyway, is in their statements as to why they were opposed to continuing with the confirmation process.
Senate Majority Leader Mitch McConnell started off on the right foot when he said “Presidents have a right to nominate just as the Senate has its constitutional right to provide or withhold consent,” “In this case, the Senate will withhold it.”( https://www.foxnews.com/politics/mcconnell-says-senate-wont-vote-on-obama-supreme-court-pick ) In saying that he was absolutely right. The President has a constitutional right to make the nomination just as the Senate has a constitutional right to give or withhold that consent.
Then quickly the focus was shifted to it being an election year. Many Republicans began repeating what both parties from time to time have said, Supreme Court nominations shouldn’t be taken up during an election year.
This idea that the confirmation process shouldn’t proceed during an election year is false. Republicans in my view should have never used that reasoning in their attempt to block Judge Garland’s nomination.
How should they have handled it you ask?
They should have stuck with the fact that Presidents can nominate and the Senate can choose whether or not to consider or take up that nomination.
Unfortunately for Democrats not only did the people elect a Democrat President, but they also elected a Republican Senate. 2016 was a classic case of checks and balances between two branches of government in action.
So here we are in 2020, another election year with another vacant Supreme Court seat. And predictably the Democrats are using the words of the Republicans against them in their argument to stop this nomination until after the election. Again no one is blaming them, that's what different political parties do. However, their argument against proceeding with President Trump’s nominee Judge Amy Coney Barrett is just as wrong as what the Republicans were using back in 2016.
There is one major difference in power this time. The people elected a Republican President and Republican Senate. Presidents are President until their not. They are elected to 4-year terms. Not 3 or 3 and a half years. President Trump just like President Obama has the right to make a nomination to fill the empty seat. The Senate just as it did in 2016 has the right to give their consent or withhold that consent for the nominee.
There was a time when a nominee like Judge Barrett would have received unanimous bi-partisan support in her confirmation. Justices are to apply the law as written, not how they wish it were. The country needs Justices that are fair, trustworthy, and honest. Judge Barrett has proven over the course of both her private and professional life to be those things.
With the Senate likely voting to confirm Judge Barrett to the Supreme Court of the United States this evening she will become just the 5th woman to have ever served on the highest court in the land. It’s an achievement that I look forward to showing my two daughters in what is possible for their future.
There was a time not all that long ago that something of this magnitude and importance would have been celebrated by both parties. Here’s to hoping that one day that will be possible again.
