Keep pol­i­tics out of the courts? Im­pos­si­ble


There are three vi­tal func­tions in our Amer­i­can govern­ment that do not lend them­selves to reg­u­la­tion or con­trol through the demo­cratic process. These in­clude the mil­i­tary de­fense estab­lish­ment, the Fed­eral Re­serve Sys­tem and the Jus­tice Depart­ment; and the courts.

But to­day the Supreme Court, one of the last bas­tions of checks and bal­ances that has tra­di­tion­ally tow­ered over the fray in Amer­i­can pol­i­tics, is fast be­com­ing just an­other el­e­ment of fickle ma­jor­ity rule or plain old pop­ulism. But some say it has al­ways been that way; and maybe it has. For very valid rea­sons Amer­i­cans have never fully trusted their govern­ment – fed­eral, state or lo­cal. To­day a two-toone ma­jor­ity of Amer­i­cans feel that pol­i­tics played too great a role in the re­cent Supreme Court de­ci­sion declar­ing Oba­macare con­sti­tu­tional. Of­ten in cases of this na­ture the court has been ac­cused of “thwart­ing the stated will of the peo­ple” or of “leg­is­lat­ing from the bench.” This long­stand­ing con­tro­versy be­gan early in the first Wash­ing­ton ad­min­is­tra­tion and con­tin­ues essen­tially un­bro­ken to­day. There have al­ways been le­git­i­mate ar­gu­ments as to the le­gal as­pects ver­sus the po­lit­i­cal and pol­icy mer­its of a law in ques­tion.

In the 2000 Bush v Gore pres­i­den­tial elec­tion de­ci­sion the court acted in a brazenly par­ti­san and po­lit­i­cal man­ner by abruptly or­der­ing the Florida vote re­count halted and ar­bi­trar­ily award­ing the pres­i­dency to Ge­orge W. Bush. Through the past cen­tury the court has lost more and more of its pub­lic re­spect, con­fi­dence and cred­i­bil­ity; from a 56% pub­lic ap­proval in the 1900s to 37% to­day, ac­cord­ing to re­cent polls. In many re­spects the court has grav­i­tated to the role of “just an­other po­lit­i­cal body.”

A prime re­cent ex­am­ple is Se­nate Ma­jor­ity Leader Mitch Mccon­nell’s adamant re­fusal to give con­sti­tu­tion­ally-man­dated con­sid­er­a­tion to Pres­i­dent Obama’s nom­i­nee to fill a Supreme Court va­cancy for al­most a year be­fore the 2016 pres­i­den­tial elec­tion. He wouldn’t even al­low dis­cus­sions or hear­ings on the mat­ter. The Repub­li­cans’ stated ex­cuse for their re­fusal was that they wanted to wait for the up­com­ing pres­i­den­tial elec­tion and to “let the peo­ple speak” con­cern­ing the new nom­i­nee.

Horse­feath­ers! This is the same bunch of hyp­ocrites that pulled out all the stops to get Brett Ka­vanaugh ap­proved be­fore the Novem­ber elec­tions (let the peo­ple speak?) af­ter which his ap­proval might not have been so au­to­matic. The GOP “is fine,” or so they stated, with con­firm­ing a Supreme Court jus­tice in a midterm elec­tion year sim­ply be­cause “it’s dif­fer­ent from a pres­i­den­tial elec­tion year.” But they didn’t say how it was dif­fer­ent; only that com­par­ing midterm elec­tions to pres­i­den­tial year elec­tions is “like com­par­ing ap­ples to or­anges.” The Repub­li­cans need to ex­plain that one with more logic and less sim­ile and metaphor. These ex­plain but don’t prove any­thing.

The Repub­li­cans aren’t fool­ing any­one, though. In all their par­ti­san rhetoric they refuse to dis­cuss the real prob­lem: that they face a pos­si­bly shrink­ing Repub­li­can con­gres­sional ma­jor­ity in Novem­ber. This may have been their one and fi­nal chance to con­firm a con­ser­va­tive jus­tice and se­cure a Supreme Court ma­jor­ity for a gen­er­a­tion or more. This may have been their chance of the cen­tury.

Just two short years ago Mitch Mccon­nell con­tended that since 2016 was such a highly-charged elec­tion year the Se­nate should wait un­til the new pres­i­dent was seated be­fore even con­sid­er­ing a Supreme court nom­i­nee. He then added, “The Amer­i­can peo­ple are per­fectly ca­pa­ble of hav­ing their say on this is­sue, so let’s give them a voice. Let the Amer­i­can peo­ple de­cide.” My, what a dif­fer­ence two years make!

Ge­orge B. Reed Jr., who lives in Rossville, can be reached by email at reed1600@bell­


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