I have plenty of friends who are Republicans. But as some may have guessed, many of my Republican friends are embarrassed by their presidential nominee. I feel their pain.
So what’s a smart and logical, yet loyal Republican voter to do?
Among my friends who still plan to vote for Donald Trump, it is common for them to say their main reason is to “protect the court.” This means that the one thing they want from Trump, and apparently trust him to do successfully, is to nominate quality members to our highest court. Sort of that is.
Many of my conservative friends claim to subscribe to either a “strict constructionist” approach to judicial review, or more appropriately the “original intent” perspective of our founding document. The late Justice Antonin Scalia and current Justice Clarence Thomas get labeled as constructionists, though Scalia took issue with that word.
The reason for this reference is that the original intent of the appointment process was specifically to limit, if not eliminate, politics from the Judicial Branch. Additionally, the lifetime appointments were specifically designed for that purpose, so that the court could act on principles of law without fear of repercussion when the result may be unpopular or anti-partisan.
The court first convened on February 2, 1790. From 1789 through 1970, the average tenure of a Supreme Court justice was just under 15 years. Since then, the average amount of time served is just over 26 years. We all live longer than the generation before us. So what?
On average, a president appoints 2.6 justices during his or her (I love writing that) term. President Jimmy Carter is the only president to not make an appointment to the court in the last 147 years. President Andrew Johnson never got his chance either, which probably is a good thing. The modern trend is expected to continue.
So are my reluctant Trump supporters right? Should we cast our votes in a couple of weeks with the assembly of the bench in mind?
To some extent, the answer is yes. But only with regard to appointing capable and quality justices. Too many voters think that a justice appointed by Trump will be an unconditional crusader for pro-gun and pro-life policies. And my point here today is that this assumption is made in error.
First, jurists are not policy makers. Even those who are described as “activists” do not get to legislate freely as if they were elected to congress. They issue decisions based on the matters brought before them. And circumstances change. People change. Even Supreme Court justices’ minds change.
Justice Thomas is celebrating his 25th anniversary on the court this week, and he has been committed to his “original intent” approach for that entire quarter century. But Justice Anthony Kennedy preceded Thomas on the court, and he has continued to famously evolve during his time.
Kennedy, who was appointed by President Ronald Reagan, wrote the landmark majority opinion in Obergefell v. Hodges, making same-sex marriage legal in America.
Chief Justice John Roberts, appointed by President George W. Bush, wrote not one, but two majority opinions upholding aspects of the Affordable Care Act. Judging by the stakes put on the judicial appointment process in this election season, this sort of thing would seem almost treasonous to today’s GOP.
But it isn’t.
Conservative judges and liberal judges alike, who are historically worthy of appointment to the high court are usually thinkers. Even though it can be argued otherwise from time to time, they are always people. Thinking people, who are not beholden to partisanship, are usually prone to decisions that make sense, at least constitutionally speaking.
In November, we are not voting for Scalia’s replacement. We are voting to elect a president and a U.S. Senator who will have constitutional responsibilities to uphold in the appointment process. Those are two very different things.
It is disappointing what has occurred in the senate since Scalia’s passing. As a people, we generally look down on walk outs, shut downs, filibusters, and blockades. I never trusted Sen. Mitch McConnell when he said the next president should fill the vacancy. He clearly announced that with the thought that the next president would be the GOP’s guy, and not the Democrats’ woman.
I believed before Mcconnell’s February 14 blockade announcement that Hillary Clinton would be the next president. It was predictable. And a Madame President would be an equally undesirable scenario for McConnell and an identical result for America: a continued blockade by the senate.
That is unless control of the senate changes also.
Bluntly, Congressman Todd Young should be required to disclose his intentions regarding this matter before Election Day. He is running for the U.S Senate, and that body is required to provide “advice and consent” on nominations to the U.S. Supreme Court. Does Young believe the senate should act on nominations or not?
This is the job for which he is running. He either wants the job or he doesn’t.