With the unfortunate and highly regrettable, yet hardly unexpected nor even alas untimely, passing of Justice Ruth Bader Ginsburg, the nation is once again in an uproar. And yet the tempest is at present a mild one — more than “in a teapot”, perhaps, but certainly less than Class Five. And this is as it should be.
The situation put plainly is this: The Republican leadership, in apparent contradiction of their own stated principle in 2016, fully intends to attempt to confirm a Supreme Court Justice to replace Justice Ginsburg regardless of the short time between now and the election. The Democrats profess outrage at the evident hypocrisy, but without granting the validity of either of the mutually exclusive positions they oppose with equal fervor.
The only principle the Republicans evidently hold to here is one of Teneo mihi igitur — “I hold it, therefore it is mine,” if you’ll excuse the abuse of Latin. The Democrats appear to be following Carl Sandberg’s dictum: “If the law and the facts are against you, pound the table and yell like hell”. (We’ll justify these statements shortly, though in simplified form. -Ed.) Notably absent in any of the discussions is a direct approach to the question: How close to the election is too close to appoint a Justice?
As it happens, the Constitution provides a clear and simple answer to this question: It is always appropriate for the President to exercise his powers of appointment, and it is always appropriate for the Senate to Advise and Consent — or not, just as they choose. Article Two, in enumerating the powers of the office of President, even grants him the right to make temporary recess appointments for any vacant office if the Senate should be out of session — and yes, that includes judges right before an election, as Eisenhower clearly demonstrated in 1960. It is evident that the Founders believed extended vacancy could be a greater evil than bypassing the Senate, but that the danger would be ameliorated by the temporary nature of the appointment. (Arguably, this may well not apply to a Supreme Court Justice. -Ed.)
“There’s nothing in the Constitution that says the president stops being president in his last year.”
– Justice Ruth Bader Ginsburg, on the appointment of Merrick Garland
It should be noted that Congress has every right to legislate the methods by which Justices can be selected; Title 28 of the U.S. Code contains, among other things, that statute which limits the Supreme Court to nine Justices. Congress cannot, however, do so in a way that abridges the power of the President. As such, the President has every legal right — indeed, a positive duty — to make an appointment regardless of election timing; if the Senate adjourns without confirming, he can make a recess appointment.
McConnell’s opposition in 2016 was therefore unjust*, and his approval at present is thoroughly hypocritical, albeit legally correct. However, that Merrick Garland was not given a recess appointment in 2016 must be considered at least partly a failure of President Obama to exercise his powers fully, despite McConnell’s pro forma session chicanery. Doubtless he had his reasons; knowing Obama, they may well have been virtuous and principled; nevertheless—
Because the Democrats have so very few options available to them in the coming battle, they have opted to appeal to the court of public opinion — which may well gain them the election and perhaps even control of the Senate. Obama’s example of restraint from 2016 may well have gained them the House, so it’s not necessarily an invalid tactic.
However, it must be acknowledged that the Democrats do hold one other potent weapon: Since there’s no budget deal (as usual), the government is relying on a Continuing Resolution by the end of September in order to keep the government open. They could refuse to let it pass the House and shut things down in reprisal for the Supreme Court pick. More reasonably, they could pass a C.R., but only one that extends until the end of November; after then, McSally’s seat in the Senate may well change parties, making future budget negotiations far less difficult for them.
After all, if the government shuts down, all McConnell needs to do is declare the Senate in recess. That would be enough justification for Trump to make his recess appointment, and it would make him look strong and perhaps even justified in his action before the election.
Because in the end, this is the one question that matters to all the players: How will this impact the election?
One further note: There is no real need of this continual contention and infighting about the selection of Supreme Court Justices. Congress has every right to create a structure including the pre-approval of a full slate of federal judges (chosen by the President, or at least a President) to be elevated automatically in time of need, as well as Senior Status Justices to ease retirement — the which should, ideally, be a painless process for both the Justice and the nation.
*NOTE: McConnell justifies his reversal of position by pointing out that the last time a Supreme Court Justice was confirmed in an election year by a Senate of the opposing party was 1880; this is evidently not the case here. While this is narrowly true, TNFN at least doesn’t consider it sufficient, nor do those we’ve consulted. It is our belief that the most appropriate recess appointment of a Supreme Court justice at this time would be to name Merrick Garland to the bench, correcting McConnell’s error. -Editor
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