The Fight Over the Supreme Court…and the Constitution

October 24, 2020

The year 2020 has certainly been a very turbulent one in our country. From the Democrats soft coup attempt to oust President Trump by way of the baseless Russian collusion and Ukrainian phone call allegations (and subsequent impeachment), to COVID-19 and the shutdown of the U.S. economy, the wearing of masks and social distancing, to the deaths of George Floyd and Breonna Taylor and the resulting rioting, violence and destruction of many U.S. cities by Antifa, Black Lives Matter and other violent groups…our country has been through an awful lot this year.  Not to mention that this year is a presidential election year, and our country is as sharply divided as ever.

On top of all that, as if our country (or the upcoming election) needed any more intensity, U.S. Supreme Court Justice Ruth Bader Ginsburg recently passed away at the age of 87, opening up a vacancy on a very divided U.S. Supreme Court.

And now it appears that “RBG” may be replaced on the U.S. Supreme Court with “ACB”…which for many of us would be “AOK” for the “USA”!!! (note, a shout-out to my good friend Leo for helping me complete that run of three-letter acronyms! ).

President Trump has nominated Judge Amy Coney Barrett to fill the vacancy on the U.S. Supreme Court left by the passing of Justice Ginsburg.  And the fight is currently on between the Democrats and the Republicans over whether or not the vacant seat on the Supreme Court should be filled before the upcoming election in November.  The Senate Judiciary Committee just voted to advance Judge Barrett’s nomination to the full Senate…over the objections of the Democrat members of the committee, who boycotted the vote and instead held a press conference blasting the Republicans for moving forward with her nomination.  Senate Majority Leader Mitch McConnell (R-KY) plans to hold the final vote on Judge Barrett’s nomination before the full Senate on Monday (October 26^th), and Judge Barrett is expected to be confirmed by the Republican majority of the Senate.

Judge Amy Coney Barrett is likely to become the next Supreme Court justice

The Democrats are vehemently opposing the attempt by President Trump and the Republicans to fill the vacant seat on the Supreme Court with Judge Barrett before the election.  What is the basis for this fierce opposition?

First of all, the Democrats have been arguing that since this is a presidential election year and we are so close to the election, President Trump and the Senate should wait until after the election, so that the “American people’s voice can be heard” with regard to filling the vacancy on the Supreme Court.

The problem with the Democrats’ argument is that the American people have already spoken with regard to filling this vacancy.  It is the 2016 election results that apply to filling this vacancy…not the 2020 election results.

Under Article II, Section 1 of the U.S. Constitution, the President of the United States is elected for a term of four years.  And according to Section 1 of the 20^th Amendment to the U.S. Constitution, the President’s four-year term expires at noon on January 20^th.  So in this case, President Trump’s current term does not expire until January 20, 2021.  

As a result, this current vacancy on the U.S. Supreme Court falls well within the four-year term of President Trump for which he was elected by the American people in 2016.  By nominating Judge Barrett, President Trump is fulfilling his Constitutional power and duty under Article II, Section 2, Clause 2 of the U.S. Constitution.  Under this same clause, the President’s nomination is subject to the Senate’s “Advice and Consent”.

Unfortunately, both the Democrats and the Republicans have been guilty of politicizing their “Advice and Consent” role relating to presidential nominations to the U.S. Supreme Court.  And this politicization of their Constitutional duty has led to the current issue  of whether or not, in a presidential election year, it makes sense for the Senate to move forward and take up the President’s nomination, or instead to wait until after the election.

The Democrats are still incensed about the refusal by Senator McConnell and the Republicans to take action on President Obama’s nomination of Judge Merrick Garland to fill the vacancy left on the Supreme Court by the death of Justice Antonin Scalia in early 2016.  At the time, Senator McConnell and the Republicans took the position that, since it was a presidential election year, the next Supreme Court justice should be chosen by the next President after the election in November of 2016.

Senate Majority Leader Mitch McConnell

But this year, we have a role reversal in the Senate…it is now 1) the Democrats who are taking the position that, since this is a presidential election year and we are so close to the election, the vacancy on the Supreme Court should be chosen by the next President and the Senate should wait until after the election to take action on the nomination, and 2) the Republicans who are pushing through the nomination despite it being a presidential election year and so close to the election.

So what we’ve heard from both of the major political parties (one in 2016 and the other in 2020) is that it is not appropriate to fill a Supreme Court vacancy during a presidential election year.  However, that position is not found anywhere in the Constitution.

President Obama fulfilled his Constitutional power and duty by nominating Judge Merrick Garland in 2016, and he had every right to do so under Article II, Section 2, Clause 2 of the U.S. Constitution.  And by that very same Constitutional power and duty, President Trump had every right to nominate Judge Amy Coney Barrett to fill the vacancy left by Justice Ginsburg on the Supreme Court.  So the issue is not over what either President Obama or President Trump did…the issue instead is over the politicization by both Democrats and Republicans concerning the Senate’s “Advice and Consent” role with respect to Supreme Court nominees.

Seemingly, with regard to the Senate’s “Advice and Consent” role, the standard should simply be whether or not the judicial nominee is qualified to sit on the Supreme Court, and the Senate should either vote to confirm or reject the nominee on that basis.  But given the political manipulation by both parties of this particular role of the Senate, is there a way to determine whether or not it is appropriate for the Senate in this instance to move forward and vote on the nomination of Judge Barrett before the election?

Actually, there is a way.  Let’s take a look at the historical precedent that has been set with respect to how a vacancy on the Supreme Court during a presidential election year has been handled in the past.

Over the course of America’s history (prior to President Trump’s nomination of Judge Barrett), there has been a vacancy created on the Supreme Court 29 times during a presidential election year.  In all 29 instances, the President of the United States nominated a replacement to fill the vacancy (including, of course, President Obama’s nomination of Judge Garland).

Of these 29 instances, there have been 10 instances when the President and the majority of the Senate have been from different political parties.  And of these 10 instances, only one time was the President’s nominee confirmed before the election…and that was back in 1888, when President Grover Cleveland nominated Chief Justice Melville Fuller (and the Supreme Court was facing a crisis of a significant backlog in its docket at that time).  In fact, when Joe Biden was Chairman of the Senate Judiciary Committee in 1992, he used this prior history to take the position that as long as the White House and the Senate are under the control of different political parties (which was the case in 1992), then during a presidential election year “action on a Supreme Court nomination must be put off until after the election campaign is over.”¹  This became known as the “Biden Rule”…and it was utilized by Senator McConnell to justify the refusal to take action on President Obama’s nomination of Judge Garland in 2016.

By contrast, of these 29 instances, there have been 19 instances when the President and the majority of the Senate have been from the same political party.  Of these 19 instances, there were (i) 10 times where the President nominated a replacement before the election, and 9 of those 10 were confirmed before the election (the only exception was in 1968), and (ii) 9 times where the President nominated a replacement after the election during the lame-duck period between the election and the inauguration of the next President, and 8 of those 9 nominees were confirmed (with the only exception back in 1793…and that nomination was withdrawn due to a technicality, resubmitted and the nominee was ultimately confirmed).  So of these 19 instances when the President and the majority of the Senate have been from the same political party, the President’s nominee was confirmed by the Senate 18 times.

Therefore, historical precedent appears to show a very clear pattern of practice.  During a presidential election year, if a vacancy arises on the Supreme Court and the President nominates a replacement, then if the President and the majority of the Senate have been from different political parties, historical precedent strongly favors holding the vacant seat open and wait for the presidential election to resolve the conflict.  However, if the President and the majority of the Senate have been from the same political party, then historical precent clearly shows that the President’s nominees to the Supreme Court during an election year get confirmed.

The “Biden Rule” does not apply to Judge Amy Coney Barrett’s nomination

Consequently, with clear historical precedent as our guide, it is certainly appropriate for the Senate to move forward and vote on President Trump’s nomination of Judge Barrett to the Supreme Court before the election.

Another reason for the fierce opposition by the Democrats over the likely appointment of Judge Barrett to the Supreme Court has to do with judicial philosophy and the proper role of a judge and the judicial branch of government.

Simply put, a judge’s role is to interpret the law and apply the Constitution, and to disregard and overturn any law that is inconsistent with the Constitution.  A judge’s role is not to legislate from the bench.  As Supreme Court Chief Justice John Roberts said during his nomination hearings before the Senate Judiciary Committee in 2005…“Judges are like umpires. Umpires don’t make the rules; they apply them.”  Roberts went on to say that “My job is to call balls and strikes and not to pitch or bat.”² (sure wish he would have held true to that viewpoint during some of his activist rulings like the Obamacare ruling!!)

Federalist No. 78, one of the Federalist Papers written by founding father Alexander Hamilton, describes the process now known as “judicial review”, in which the federal courts review statutes and regulations to determine whether or not they are consistent with the Constitution and existing law. Under the Constitution, the legislature (i.e., Congress) is not the judge of the constitutionality of its own actions, for obviously very good reasons; instead, it is the responsibility of the courts to protect the American people by restraining Congress from enacting laws which conflict, or are inconsistent, with the Constitution and to keep Congress within the limits of its authority. The power of judicial review is to be used by the courts to protect the liberties guaranteed to the American people by the Constitution and to provide a check on the power of Congress (i.e., part of the brilliant system of “checks and balances” and separation of powers set up by the Founding Fathers under our Constitution).  The Supreme Court has the power to strike down as invalid any law which is in conflict with the Constitution.  This principle of judicial review was affirmed by the Supreme Court under the landmark case of Marbury v. Madison way back in 1803. 

Alexander Hamilton addressed the vital process of judicial review in Federalist No.78

Judge Barrett adheres to this judicial philosophy that a judge’s role is to interpret the law and apply the Constitution, and not to legislate from the bench.  Judge Barrett, like her mentor Justice Scalia, is both an “originalist” (i.e., one who asserts that the Constitution should be interpreted based on the original understanding at the time it was adopted) and a “textualist” (i.e., one who believes that laws should be primarily interpreted based on the ordinary meaning of the legal text).

Judge Barrett is at the opposite end of the legal spectrum from Justice Ginsburg, who was a “judicial activist” (i.e., one who believes that judges can and should go beyond the applicable law and consider the broader societal implications of their decisions, and that judges may allow their personal views about public policy to guide their decisions).  This type of judicial philosophy leads to judges legislating from the bench…in other words, judges seeking to essentially enact legislation through court rulings.  The classic example of the judicial activist philosophy would be the Roe v. Wade decision, where the Supreme Court effectively legislated abortion rights into existence what the supporters of abortion could not get passed through legislation in Congress.

The impact on the Supreme Court of this very significant shift in judicial philosophy between Justice Ginsburg and Judge Barrett is why the liberal Democrats are so vehemently opposed to Judge Barrett’s nomination.  The Democrats are in favor of liberal judicial activism on the Supreme Court and the rest of the court system, and they view the judiciary as a way to advance their liberal agenda…obtaining through activist court decisions what they are not able to obtain through the Congressional legislative process.

The liberal Democrats view Judge Barrett as a threat to the advancement of their agenda.  Not only is Judge Barrett an originalist and textualist, and not a judicial activist…but she is also a Christian and devout Catholic, who is personally pro-life and has seven children.  During her confirmation hearings for appointment to the 7^th Circuit Court of Appeals in 2017, Senator Dianne Feinstein (D-CA), ranking member of the Senate Judiciary Committee, attacked Judge Barrett concerning her Catholic faith by telling her “the dogma lives loudly within you – and that’s of concern.”³  The attack of Judge Barrett’s Catholic faith by Senator Feinstein (and others, including Hawaii Senator Mazie Hirono) essentially amounted to a violation of the “religious Test” restriction under Article VI of the Constitution.

“The dogma lives loudly within you – and that’s of concern.”

— Senator Dianne Feinstein to Judge Amy Coney Barrett

The Democrats are so upset by the significant shift in judicial philosophy that will result from Judge Barrett’s replacement of Justice Ginsburg on the Supreme Court that they are threatening to “pack the Court” if they win the White House and a majority in the Senate in the upcoming election.  And because this concept is so unpopular with a majority of the American people, the Democrats are even trying to redefine what it means to “pack the Court”…by saying that President Trump and the Republicans are “packing the Court” by pushing through the confirmation of Judge Barrett to the Supreme Court before the election.

Just so we’re clear on what “packing the Court” really means, “packing the Court” does not mean simply filling a vacant seat on the Court (which is what the appointment of Judge Barrett would be)…“packing the Court” means expanding the number of justices on the Court to achieve a political objective and outcome.  President Franklin D. Roosevelt attempted to do this in 1937, when he tried to expand the number of Supreme Court justices in order to change the makeup of the Court to obtain favorable rulings on his New Deal legislation.  Fortunately, his attempt was resoundingly defeated, as there was very significant push back from the American people.

However, the Democrats are trying again here in 2020…top Democrats, including Senator Ed Markey (D-MA), former Obama Attorney General Eric Holder and House Judiciary Committee Chairman Jerrold Nadler (D-NY) have made direct calls for packing the Court if President Trump and the Republicans fill the seat vacated by Justice Ginsburg before the election.  In addition, Senate Minority Leader Chuck Schumer (D-NY) said “Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year.”⁴  And current Democrat Vice Presidential candidate Kamala Harris (D-CA) said “I’m absolutely open to it” when asked by the New York Times in 2019 if she would be open to expanding the size of the Supreme Court.⁵

As for Democrat Presidential candidate Joe Biden, he is being more cryptic and refusing to state his position on the issue of court packing.  On October 8, 2020, Biden said that he won’t reveal his position on court packing “until the election is over.” ⁶  Then two days later, on October 10^th, he said that voters “don’t deserve” to know his position on court packing.⁷  I don’t know about you…but my understanding has always been that political candidates are supposed to tell the voters what their position is on major issues.  That is a fundamental element of campaigning.  At least it used to be.

We have had 9 seats on the U.S. Supreme Court since 1869.  The effect of the Democrats packing the Supreme Court would be to turn the Court into a second (or “super”) legislative branch and an unchecked activist political body.  It would completely destroy the separation of powers and system of “checks and balances” which the Founding Fathers established under the Constitution…and we can say goodbye to the Constitution and our country as we know it.  It is incumbent on all of us who love this country as founded to send a strong message with a very loud voice that any attempt by the Democrats to pack the Supreme Court (or other courts in the judicial branch) will be overwhelmingly rejected by the majority of the American people…just as it was in the days of FDR.

Finally, as for Judge Amy Coney Barrett…she will be a very welcome, highly qualified, much needed addition to the U.S. Supreme Court.  As the attacks come her way, our prayer for her needs to be the words found in Isaiah 54:17…“‘no weapon forged against you will prevail, and you will refute every tongue that accuses you. This is the heritage of the servants of the Lord, and this is their vindication from me,’ declares the Lord.”  May she fight successfully on our behalf for many, many years on the U.S. Supreme Court for the preservation and protection of the U.S. Constitution and our liberties and freedoms.

¹ “McConnell dismisses ‘Biden Rule’ for SCOTUS nominee as GOP controls Senate, WH” by Mary Kay Linge, posted on New York Post website on September 19, 2020.

² “Roberts: ‘My job is to call balls and strikes and not to pitch or bat”, posted on CNN.com website on September 12, 2005.

³ “Dianne Feinstein Attacks Judicial Nominee’s Catholic Faith”, by Alexandra Desanctis, posted on the National Review website on September 6, 2017.

⁴ “Top Democrats threaten to pack Supreme Court if Trump fills RBG seat”, by Emily Jacobs, posted on New York Post website on September 21, 2020.

⁵ “Will Democrats attempt to pack Supreme Court again?”, by Chris Talgo, Opinion Contributor, posted on thehill.com website on September 26, 2020.

⁶ “Biden says he won’t reveal opinion on court packing ‘until the election is over’”, by Kambree Nelson, posted on The Conservative Opinion website on October 8, 2020.

⁷ “Biden says voters ‘don’t deserve’ his stance on packing Supreme Court”, by Mary Kay Linge, posted on New York Post website on October 10, 2020.