It has been a big week in news about the Supreme Court. A huge week in fact. Not just its decisions, but its direction. The thing is, according to BoomerCafé co-founder and executive editor Greg Dobbs in this Boomer Opinion piece, none of it should have happened.
A friend sent me an email today that is circulating among conservatives, saying that while “there’s no shooting,” the Democrats are waging “a civil war.” Its hypothesis? That Democrats “don’t accept the results of any election that they don’t win.” That “when you consistently reject the results of elections that you don’t win, what you want is a dictatorship.” That the Mueller investigation “is about removing President Trump from office and overturning the results of an election.” It even shamelessly cites “the attempt to kill a bunch of Republicans at a charity baseball game practice.”
My response amounted to three words: Think Merrick Garland.
Baby boomer Garland, for those with a short memory (such as every Republican who takes pride in the conservative direction of the Supreme Court), is the federal judge nominated to the Court by Trump’s predecessor, President Obama (another boomer), after the death of Antonin Scalia (definitely pre-boomer). Nominated, if you need to be told, in keeping with the Constitutional requirement that the president “shall nominate … Judges of the supreme Court.” Nominated, if you need to be reminded, ten months before the end of Obama’s term
But because Senate Republican Leader Mitch McConnell (another pre-boomer) shamelessly held up the nomination because, as he put it, Obama shouldn’t be able to “pack the court,” progressive Merrick Garland still sits on the United States Court of Appeals in Washington DC. Conservative Neil Gorsuch (not even old enough to be a boomer) sits on the High Court.
Am I litigating an old grievance? Yes. But with a purpose. For with the three sweeping decisions by the Court just this week, and then the news that with the retirement of Justice Anthony Kennedy (way before boomer), Trump (the oldest boomer) now gets to name a second consistently conservative nominee, the state of the nation takes a troublesome turn. Already because of this week’s decisions, Trump’s hate-driven travel ban will keep immigrants from fleeing their dangerous homelands for ours, anti-abortion “crisis pregnancy centers” won’t have to tell the truth to expectant mothers about their ultimate goals, and labor unions, along with the whole principle of collective bargaining, are weakened.
What other destructive decisions come next?
Had Republicans three years ago followed the rules, none of this would have happened. Yet they didn’t, which is why Mitch McConnell is being given credit by his party for the week’s precedent-shattering Supreme Court decisions. Which is why he is parading in the party’s plaudits. But which also is why his amoral maneuver to pack the Court his way deserves re-litigation. To remind people, these changes in the nation’s once proud course are built on an illegitimate foundation.
McConnell started this pathetic mess in 2015 by saying in a statement only an hour after Scalia’s death was announced, “The American people should have a voice in the selection of their next Supreme Court Justice.” Newsflash: “The American people” had re-elected Barack Obama to his second term in 2012 (making him the last president to win both the popular and electoral college votes). I’d guess they knew it was for the full four years. And if they didn’t know, the Constitution laid out the president’s prerogatives in black and white: “He shall hold his Office during the Term of four Years.”
What could we conclude at the time? That the Republicans, sometimes sworn defenders of the Constitution as the written law of the land, other times believe in some kind of unwritten law when the Constitution’s clarity doesn’t comfort them.
What’s more, McConnell once wrote, “The President is presumably elected by the people to carry out a program and altering the ideological direction of the Supreme Court would seem to be perfectly legitimate part of a presidential platform.” Caveat: he wrote that back when the president was a Republican. How forgetful he became. How convenient.
It’s important to be reminded of all this. Not that it changes anything today. But it could influence Americans to make fundamental changes tomorrow. Even those who love what’s happening might heed the words of the man whose death led to this whole travesty: Justice Scalia himself. He wrote, the year before he died, “Ours is a government of laws and not of men.”
If the “men” of the Republican Party had let the law do its work, we would be a different nation today. At least in principle, even Scalia would have approved. But we’re not. Because the Republicans waged a civil war, not the Democrats.
Think Merrick Garland.
Greg’s book about the wacky ways of a foreign correspondent, Life in the Wrong Lane, is available from Amazon.