The Democrats’ self-serving, contrived argument that we should leave the next Supreme Court justice, who will replace RBG, “up to the voters” is legally, procedurally, constitutionally, rationally and politically invalid. The relevant voters in this case are those in 2014, 2016 and 2018 that elected the current Senate majority to serve their full six-year terms and President Trump to serve his full four, which extend into January of 2021. The results of those elections can’t be revoked. The voters in November will get their turn at public policy when a new Congress is seated early next year and, perhaps, a new president is inaugurated on January 20th. In the meantime, President Trump, Senate Majority Leader Mitch McConnell and the GOP Senate majority will continue to hold power and faithfully adhere to the platform and public-policy agenda they campaigned on when they were elected.
A vital element of that agenda was a rebalancing of the federal courts, filling vacancies with “originalist” and “textualist” conservative jurists whose allegiance is to the clear intent of the Constitution and the laws as they were written. That’s what they promised the voters they’d do. That’s what they’ve done and will continue to do in the confirmation of Judge Amy Coney Barrett, a brilliant and distinguished jurist who’s won praise from fair-minded colleagues, even of differing judicial persuasions.
If the shoe were on the other foot, Democrats would follow the same tack and not hesitate to appoint a jurist from their stable of judicial activists who believe in what they call “a living Constitution.” By that they mean, judges who would override the original intent and clear wording of the Constitution and the law to fit their notion of what it ought to say based on current politics, the left’s “social justice” ideology or their pet causes. (RGB’s, for example, was the empowerment of women.) To be clear, the U.S. government has a Department of Justice, not a Department of Social Justice, which is a radical left-wing political movement based in identity politics, special pleading and unbounded government intervention in your lives and the economy. In essence, judicial activism turns judges into legislators, violating the fundamental constitutional intent of the separation of powers among the three co-equal branches of government.
Justice Oliver Wendell Holmes, Jr. concisely rejected judicial activism in his reply to an idealistic young lawyer in his courtroom, “This is a court of law, young man, not a court of justice,” meaning the remedy for perceived injustice is the province of the legislature, not the courts. Failing that, the Constitution provides a process to amend it. The left’s ploy is to misapply the term, calling it “judicial activism” when originalist judges overturn unconstitutional laws or overrule activist judges on appeal. That’s like equating a cure for cancer with the cause of it.
When Democrats can’t get legislation through Congress or signed into law by a Republican president, they’ve increasingly resorted to bypassing the legislative process to obtain friendly rulings from like-minded progressive judicial activists in the courts. This outsized elevation of judicial power explains why judicial nominations have become so contentious and ideological. The stakes are so much higher now. This was shamefully displayed in the disgraceful treatment of Robert Bork, Clarence Thomas and Brett Kavanaugh by Democrats in their confirmation hearings. Republicans have been considerably fairer, joining Democrats in approving RBG 96-3 and offering little resistance to Sotomayor and Kagan.
In 2016, President Obama’s final year, when Senate Republicans blocked his SCOTUS nominee, Merrick Garland, that action was consistent with common practice, by both parties, ever since 1888 when a Senate majority is of one party and a president, of the other. When a president and Senate majority are of the same party, nominees are usually confirmed. To win confirmation, a judicial nominee requires the approval of both the president and Senate, across the executive and legislative branches. This isn’t by accident; it’s the way the founders intended it under the separation of powers, and checks and balances to encourage compromise in our tripartite system of government.
Just as they did with Kavanaugh, Senate Democrats will attempt all manner of delays and ruses to run out the clock on Barrett’s confirmation, initially claiming it’s unsafe to proceed during the pandemic. Nonsense. The Judiciary Committee and others are already holding virtual hearings with members participating remotely. Barrett could appear in person wearing PPE, a NASA space suit or even a burka. Mitch McConnell is a procedural mastermind, and appears to have the votes and holds all the high cards.
Longtime KOA radio talk host and columnist for the Denver Post and Rocky Mountain News Mike Rosen now writes for CompleteColorado.com.