How Low Can We Go?

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Dr. Malcolm Cross

All Americans, and not just those who shared her judicial philosophy, should mourn the passing of Ruth Bader Ginsburg.  Her death, like that of any decent person, diminishes society, and perhaps in her case more so than usual, given her prominence and her contributions to making society more fair.  Moreover, the fight to fill the newly-created vacancy on the United States Supreme Court will inject more poison, if possible, into our already venomous politics, since Senators, both Democratic and Republican, are frequently dishonest in revealing their real reasons for supporting or opposing the Supreme Court nominees on whom they have to vote.  They should be more honest in why they take the positions they do, and more willing to try to change the impact of the Supreme Court by working to amend the Constitution to undo Supreme Court decisions they dislike.

President Trump will appoint, and Republican Senators will support, someone whom they think will make the Supreme Court more conservative.  Democratic Senators, given their desire for a more liberal Supreme Court, will oppose any nominee Trump appoints, hoping he’ll be replaced by Joe Biden, whose Supreme Court appointees will no doubt be more to their liking.

Assuming a Supreme Court nominee is otherwise honest and competent, to base the decision on how to vote on his (or her) nomination is by no means dishonest or unconstitutional.  Indeed, Senators concerned with the impact of a new Justice on Supreme Court decisions are voting with well justified reason, given the profound impact of the Supreme Court on American history.  Its decisions on slavery, racial segregation, gay rights, abortion rights, gun owners’ rights, etc., etc., etc. have had as great an impact, if not greater, than the decisions of most Presidents and Congress.  To be concerned with the policy implications of Supreme Court nominees makes perfect sense.

The process becomes corrupt, however, when Senators try to disguise their public policy motives for voting for or against Supreme Court nominees, and assert other reasons for their actions.  In 2016 President Obama acted well within his rights and responsibilities in appointing the estimable Judge Merrick Garland to the Supreme Court to replace the late, great Antonin Scalia.  And Mitch McConnell and the Senate Republicans were likewise well within their rights to want a more conservative justice than Garland might prove to be, given that he was an Obama appointee.  But they corrupted the system not by opposing Garland, which they had every right to do, but by positing a specious rule, found nowhere in the Constitution, that nobody should be appointed to the Supreme Court during a presidential election year.  Had McConnell and company simply been candid in their reasons for opposing Garland, they would still have had the power to block him then and they would not have to twist themselves into pretzels today to explain the abandonment of their “rule.”  

Likewise, President Trump was perfectly justified in appointing Brett Kavanaugh to the Supreme Court and Republicans were well justified in supporting him on the supposition that he would help take the Supreme Court in a more conservative direction.  For that same reason, Senate Democrats had every right to oppose his nomination, which is why they also honorably if unsuccessfully opposed the nomination of Neil Gorsuch.  But the Democrats, too, corrupted the system by accusing Kavanaugh of disgusting sexual crimes and requiring him to bear the burden of proving his innocence of them.  (As long as the Democrats refuse to retract their charges and or otherwise admit wrongdoing, it should be noted that most of Kavanaugh’s accusers have either admitted they lied or claim to no longer remember any wrongdoing; the one holdout, Christine Blasey Ford stands by her accusation that Kavanaugh attempted to rape her, but the two men she cited as witnesses denied any knowledge of the alleged assault, as does the female witness, who has added that she doubts the attack ever happened).

Usually lost in discussions of the Supreme Court is the fact that other options are available to those members of Congress who dislike whatever the Supreme Court is doing.  Most important is the option to work to change the Constitution itself.  Formally amending the Constitution rarely happens, perhaps because those who wrote it devised so cumbersome a scheme for doing so:  The addition of an amendment normally requires the assent of two-thirds of each House of Congress, and the approval of three-fourths of the states.  An alternative method, the approval by three-fourths of the states of an amendment proposed by a new constitutional convention called by Congress at the demand of two-thirds of the states has never been used.

The authors of our Constitution designed the process to require widespread state support to successfully amend the Constitution, and in a vast continental republic such as the United States today, winning that support is obviously difficult.  But should members of Congress dissatisfied with the Supreme Court’s decisions choose to try to amend the Constitution with the methods its authors devised, rather than resort to fatuous parliamentary procedures or outright character assassination while suppressing their true public policy desires, they will make our system less corrupt and more worthy of public respect.


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.

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