Trump comes Acourtin’

Advertisement
Dr. Malcolm Cross

The last couple of weeks have been pretty turbulent as President Trump sets out to do exactly what he said he’d do—close our borders and limit immigration.  But they’re going to seem like a walk in the park on a Sunday afternoon compared to what’s coming next—a fight over President Trump’s Supreme Court nominee, Neil Gorsuch.

The hyperventilating, especially from Trump’s opponents in the Senate and the news media, has already begun.  For example, the New York Times has charged the Senate Republicans with “stealing” the Supreme Court seat Trump seeks to fill:  The seat became open with the death of Antonin Scalia a year ago; Obama sought to fill it by appointing the highly qualified Merrick Garland; the Republican majority in the Senate refused to even consider the nomination, blah, blah, blah.

To all of which Trump’s allies have responded by saying that Joe Biden, back in 1992, said presidents shouldn’t make Supreme Court appointments in election years; in 2006, then-Senator Obama and then-fellow Senator Hillary Clinton tried to block the Senate from considering President Bush’s Supreme Court nominee, Sam Alito; Republicans did nothing to stop, and in some instances supported, the four previous nominations to the Supreme Court made by Presidents Clinton and Obama, blah, blah, blah.

As predictable as the charges Democrats and Republicans have hurled, and will continue to hurl, against each other, are the tactics that will be used to try to destroy the reputation of Judge Gorsuch.  For example, when President Reagan nominated Judge Robert Bork for the Supreme Court in 1987, opposition research included searching his garbage cans to look for evidence that he watched pornographic movies (finding nothing, the Democratic-dominated Senate rejected his nomination anyway).  And let’s not forget the smear campaign against Clarence Thomas, wherein he was charged with sexual harassment.  Right now, Judge Gorsuch is being praised for his intellect and his basic decency (he even made a courtesy/condolence telephone call to Judge Garland).  But no doubt the search is already underway for the tidbits of information—real or alternate—which might be used to defeat him.   And even if nothing is found, his views will be distorted beyond recognition in the Democrats’ efforts to defeat him, and the Republicans’ efforts to confirm him.

So why are battles over Supreme Court nominees becoming more likely to inspire such filthy tactics and generate lasting bitterness.  At least three reasons stand out.

First, the Supreme Court heads the federal judicial branch, which is considered an independent branch of government and not part of the executive branch.  By custom and tradition, the Senate is usually inclined to approve a President’s appointees to his Cabinet, reasoning that since the Cabinet is part of the executive branch of which the President is head, and since he will be held responsible for cabinet members’ performance in office, he should be given deference in making appointments.  Because the judicial branch is not answerable to the president, he is entitled to no such deference in making judicial appointments.

Second, the Constitution says that once appointed by the President and confirmed by the Senate, Supreme Court Justices, as well as lower court judges, “shall hold their Offices during good Behaviour (sic)…” This has been interpreted to mean that a Supreme Court Justice may serve for as long as he chooses, even for life, and cannot be removed from office against his will except through the impeachment process.  Moreover, the only recognized justification for impeaching and removing a Supreme Court Justice is evidence of criminal behavior.  Because Supreme Court Justices may serve for decades, the Senate wants to be more careful in confirming their appointments in the first place.

Third, the Supreme Court, through its power of judicial review—the power to declare acts of Congress and the President unconstitutional—has enormous power over the making of important public policy.  Whether its decisions help expand slavery, legitimize racial segregation, promote racial desegregation, establish abortion rights, erode property rights of the poor, redefine marriage, or help elect or remove a president, the Supreme Court has had a major impact on America’s evolution. 

Given the Supreme Court’s enormous power to shape America, the President, the Congress, and many interest groups all too often prefer to shape policy through the Court, rather than through the cumbersome and time-consuming, yet more democratic, legislative process.  And this is unfortunate:  We’ve allowed the transfer of vast power over public policy to be surrendered by democratically elected lawmakers to an unelected and almost unaccountable group of nine men and women.  We pour too much energy into trying to predict what judicial nominees think, and to destroy them if we fear they might not think the way we want them too, and not enough energy into the vigorous public policy debates which are the signs of a mature and healthy democracy.

Were America more mature and healthy, the President and Senate would consider mainly the integrity and ability of Supreme Court nominees, without worrying too much how they would rule on particular cases.  If the President and the Congress wanted the establishment of particular rights and policies, they would fight for or against them in congressional hearings, on the floor of the Congress, and on the campaign trail.  And if the Supreme Court issued a ruling widely reviled, then the President and Congress would work via legislation or constitutional amendment (with the participation of state legislatures) to modify or overturn the offending opinion or otherwise ameliorate its effects.  But nobody would spend too much time trying to read appointees’ minds, or look through their garbage, or otherwise engage in the sort of character assassination directed at Bork and Thomas, or even the boorishly rude behavior directed at Merrick Garland.

But we’re not there yet.  So—good luck, Neil Gorsuch.  You’ll need it.  And so will the next Supreme Court nominees, whether they’re appointees of a Republican or Democratic president.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

Be the first to comment

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.