Wednesday, October 14, 2020

On SCOTUS, BIDEN-HARRIS Are Completely Wrong

There is one phrase I hear over and over and over again during every election cycle, that I absolutely hate because it is 100% wrong.  That phrase is “We live in a Democracy.”    We do not.   This country has never been a Democracy.   We live in a Republic.  It is because we live in a Republic that we have a House and Senate, and because we live in a Republic, the votes of the middle of the country actually make a difference in a Presidential Election, and the President is not just elected by a plurality on the East and West Coasts.  

Recently, the Biden-Harris statement on Appeals Court Judge Amy Coney Barrett's nomination to the Bench has been "We live in a Democracy, and the PEOPLE deserve their say" when it comes to the  Supreme Court (or words to that effect).  This answer could not be more wrong.

(In the interest of full disclosure, at this time, I have NOT decided which of the MANY candidates I will cast my ballot for.    I will likely NOT vote for former Vice President Biden and Senator Harris.  Anyone who has read the articles on this site over the last few years, will note I have not written in favor of President Trump- at least not often.  I have, however, found Jo Jorgenson to be an interesting candidate, but I remain undecided).

As a Republic, we vote for only certain persons at the Federal level.  Our US House Representatives and our Senators.  Voting for Senators is actually not what the Founding Fathers intended.   State Governments selected their Senators- not the people.  In point of fact, the Constitution has only stated that Senators are to be elected by popular vote since 1913 and the ratification of the 17th Amendment- or in other words, 107 years- less than half of our country's history.  We do NOT elect a President.  We elect slates of electors who will vote for a President and Vice President.   If they fail to elect a President, the House of Representatives elects a President and Vice President.   Again, this ensures that every state has an impact on the election- not just the plurality of the East and West Coasts.

The Court however, is supposed to be above politics.  Justices are appointed for life, by a President of the United States and confirmed by the Senate.   The PEOPLE, have NO SAY in the appointment of Justices to the Supreme Court- as it should be.  This was the INTENT of the Founding Fathers and has been accepted for the entire history of this country.  The PEOPLE having a say on the Supreme Court would politicize the Court, and would destroy the integrity of the Court in its role as unbiased arbiter of the Constitution.  If the Court were dependent upon the "will of the people" through election, Brown v Board of Education, may not have been decided.   The Miranda (Miranda v Arizona) warning may not exist, and hundreds of other cases may not have been heard or decided, if Justices had to rely on "public opinion" to be elected, or to stay in office.   

The closest we are able to come to influencing the Court, is the election of a President and the election of our own Senators from our state.   But even this action has limited impact on The Court.   No one can predict the death or the retirement of a Justice.    The death of Justice Scalia was not expected.   Perhaps one could have predicted the deaths of Chief Justice Rehnquist or perhaps Justice Ginsberg, but one can not make those predictions years out. A President may only appoint one Justice in a presidency.  Appointing three in a single term is unusual.

The Constitution dictates that the President makes appointments to the Court.   The Constitution dictates that the Senate "advise and consent."   The appointment by President Obama of  Judge Merrick Garland fulfilled the Constitutional requirement to make the appointment.  The Senate majority did not provide consent to the appointment- as was the right of the Senate.  There is no Constitutional requirement for the Senate to hold hearings on any appointment.  The hearing is procedural, not a Constitutional requirement.   The fact is, the Senate chose not to "consent" to the appointment  This was within the scope of the duties of the Senate.   Whether this was a popular decision, or whether this decision was what the minority in the Senate wanted, the fact remains, it did fulfil the Constitutional requirements.

The appointment of Judge Amy Coney Barrett to the Supreme Court is also within the scope of the Constitution.   To those who say she is going to rule in any predictable manner on any specific issue will very likely be in for a surprise.   The scope of Judge Barrett's prior rulings in the Court of Appeals are based upon precedent and interpretation of precedent as provided by the Supreme Court.  This does not mean that the Judge, once appointed to the Supreme Court, will vote the same way, when it is they who are deciding what the precedent will be.    We have seen this with Chief Justice Roberts and recently with both Justices Kavanaugh and Gorsuch.   I am sure we will also find that predicting Justice Barrett, will be equally as difficult.    One should never try to predict what the Court will do.



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