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Trump’s Second Supreme Court Nominee

Posted in Politics and Justice by EloiSVM42 on July 7, 2018

President Trump has said he will announce his candidate to fill the Kennedy vacancy on the Supreme Court on Monday night, during a prime time TV spectacular. Given Trump’s shameless promotion proclivities and Miss America association, one might wonder if we’ll see a swimsuit competition among the candidates.

This blog is to put down thoughts about the process before the candidate is announced. These thoughts are informed by:

1.     My understanding of, and respect for the Constitution

2.     My recent realization that the Founding Fathers framed the Constitution assuming everyone would do his or her job, about which they are being proven wrong in the present day.

3.     History and experience.

I’m old enough to remember when Supreme Court Justices were selected based on particularly outstanding merit rather than ideology. Typically, the quality and character of the nominees was so great and so apparent, that the candidates were generally consented to by high percentages of the advising Senators, often unanimously.

Today, ideology, partisanship and “litmus tests” are the primary criteria for a nomination, and even qualified candidates, and the occasional one clearly not, get on the Court by small majority votes. Clarence Thomas is a smear on the history and standards of the Court. Samuel Alito. Are you kidding me?

There are differing opinions on where this shift began. Many presidents have nominated a clunker or two: Johnson (Abe Fortas); Nixon (Haynsworth and Carswell); Reagan (Bork and Ginsburg).

Presidents George H.W. Bush (Souter and Thomas), Clinton (Ginsburg and Breyer) and Barak Obama (Sotomayor and Kagan) had no Supreme Court nominee rejections, though Bush should never has nominated the truly mediocre Thomas in the first place.

The process descended into farce when George W. Bush nominated Harriet Meyers. But this downward spiral hit a nadir when Senate Majority Leader Mitch McConnell refused even to hold hearings on President Obama’s third Supreme Court nominee – Merrick Garland – thus stealing an appointment from Obama and severely damaging the integrity of both the Senate and the Court in the process. I will never feel the same about either again. McConnell’s act was a doubly dastardly dirty deal, and that’s how history will record it.

Trump is certain to select a conservative nominee, one expected to be favorable to his initiatives, including even overturning Roe v Wade, which decision the Court handed down in 1973, and about which I will write more next week.

My only comment on Trump’s announced contestants on his game show, is that there is a dull, ordinary sameness to them, cookie cutter credentials, and no exceptionalism.

This nomination is happening while Democrats are still seething over the McConnell betrayal, and many Democrats want to do a tit for tat if they can, which is doubtful anyway. But this is the classic example of two wrongs only making a greater wrong, which is no way to treat the Constitution, just because some particularly smarmy pig part did.

Democrats must be better than that. Place the nominee or nominees, depending on how the process goes, under serious scrutiny. Some may crack. Some may surprise pleasantly. If they don’t display exceptionalism, vote against them. If they do, vote for them. Don’t vote either way for political convenience.

Live with the final decision – under the Constitution it is Trump’s to make – and take what comfort we can in these truths: 1) Trump, and his party, will be held to political account for his decision, which is likely to tickle his base but disturb and activate the majority of Americans, and 2) Ultimately, the Court does not decide. The people decide. Unpopular decisions change the Court, through popular consensus and political change. In the meantime, the Constitution is faithfully served by at least one political party.

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