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New Supreme Court Justice

In a long sentence having to do with presidential powers, the United States Constitution states in relevant part: “He shall have Power, . . .  and with the Advice and Consent of the Senate, shall appoint . . .  Judges of the supreme court . . .” There are no special provisions regarding vacancies in an election year.

The death of Supreme Court Justice Ruth Bader Ginsburg has created a controversy about whether President Trump should nominate a replacement this year since it is an election year. Several publications, including National Review, have gone back and looked at the history of how vacancies in the Supreme Court in a presidential election year, have been handled in the past. According to Dan McLaughlin, in National Review, we have been in this situation 19 times, when the President’s party controlled the Senate. The President made a nomination before the election in 10 of these cases. In 9 of them, the nominee was confirmed. The exception was Abe Fortas, who had ethical problems. In 9 other cases, the President made a nomination after the election. In 8 of these cases, the nominee was confirmed during the lame-duck session. The only exception was a nominee who was withdrawn for technical reasons and was resubmitted and confirmed after the first of the year. The clear precedent is that when the President’s party controls the Senate, and there is a Supreme Court vacancy during an election year, the President has submitted a nominee who was confirmed that year, except for the 2 cases, and even then, one of them was confirmed the next year. The only nominee that was not confirmed was for ethics reasons having nothing to do with the fact that it was an election year.

On the other hand, when the Senate was not controlled by the President’s party, there have been 10 vacancies in an election year. The President made a nomination before election day in 6 of the cases, but only 1 was confirmed.

As I write this on September 25, the President has not announced his pick. However, the Democrats have already made clear that they will vehemently oppose whoever it is. The women who appear to be at the top of the list, currently sit on one of the Circuit Court of Appeals, the courts just below the Supreme Court. They have been confirmed by the Senate to their current positions, in the last several years. I find it interesting that one of the main objections to some of the possible appointees is that they hold strong Christian beliefs. It is apparently ok with the Democrats and much of the media to criticize nominees for holding Christian beliefs.

Judges are supposed to set aside their personal beliefs and decide cases based on the Constitution and the laws as written. I have often raised the point that you write a Constitution or law, based on the meaning of the words you use to enact them. If courts can change the meaning of constitutional provisions by changing the meaning of words, you really don’t have a Constitution. Yet we have had many liberal judges over the years claim that they have the right to change the meaning of words to reflect the “changing principles of society.” They call the Constitution a “living, breathing document.” How do we know what the changing principles are? The judges tell us. This allows them to change the Constitution and laws according to what they think they should be, rather than according to the intent of those who wrote them. President Trump has pledged to appoint judges who will follow the Constitution and laws as written. In my opinion, this is one of the most important things he has done. I have no reason to think he will not follow that principle in making this current appointment.

By the time you read this, we will know who the nominee is.

Julian Garrett

Author: Julian Garrett