Senator Chuck Grassley, R-Iowa, said, “For almost the last 80 years, it has been standard practice that Supreme Court nominees are not nominated and confirmed during an election year. Given the huge divide in this country and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
To paraphrase – in part – given the polarization that has torn America and the rumors of probable election protest as well as a possible presidential self-pardon within the coming weeks – one might easily believe those words are a description of the current president and a comment on the integrity of the United States Senate. If so, that would be a major miscalculation. No, those words were uttered in 2016, nearly nine months before the national election and shortly after the death of Justice Antonin Scalia.
Eventually, on the final day of January, 2017, less than two weeks after the inauguration of the 45th President, Neil Gorsuch was nominated and later confirmed after a contentious Senate battle to take his Supreme Court seat in April of that same year. It took 11 months to make the nomination and almost three more to seat Justice Gorsuch.
Now, in the midst of a pandemic and power play at the highest levels, comes the latest judicial battle. When Ruth Bader Ginsburg passed away on September 18, it was generally accepted that out of the same courtesy, the next Supreme Court nomination would be made sometime after the November 3 election. After all, that was a mere 46 days, less than one-sixth the time between the death of the previous justice and the national election. With the COVID-19 crisis rampant and so many important financial concerns for individuals and businesses hurt by the virus, it surely seemed the Senate had more timely business to conduct. Not so.
When push comes to shove the Supreme Court nomination of Amy Coney Barrett has been pushed through and apparently shoved unceremoniously to its conclusion. Merrick Garland must be irritated and perhaps embarrassed to see how the legislators are fast-tracking Mrs. Barrett’s nomination when he was unable to get a hearing even though his name was placed in front of the Senate 269 days in advance of the 2016 election.
The nomination has little to do with the fact that Mrs. Barrett is female and Catholic. Neither is a major factor nor should they be. Intelligence is not parceled out on the basis of sex and any student of the law knows the emphasis placed upon separation of church and state. Legal qualifications are what matter in court appointments and age is yet another key consideration. Barrett is 48, relatively young in modern terms and so will likely serve for at least two decades as a Justice. That is a plus to maintain continuity.
No, the nominee is not the problem. Presumptive Justice Barrett bears no blame for accepting a chance to join the nation’s highest court. Few among jurists would decline such an opportunity. It is a once-in-a-lifetime opportunity for a lifetime position in an elite setting.
The hypocrisy and hardball politics is galling, especially for Democrats, who recall all too well the hollow words of several prominent senators just four short years ago. “Short” may be an ill-chosen term because for many the last 40-plus months have unfolded in interminable fashion.
Consider, for example, Majority Leader Mitch McConnell’s statement in 2016. He said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this position should not be filled until we have a new president.” That proclamation was made in mid-February, almost nine full months before the election. In a complete reversal, on the very day that Justice Ginsburg died, McConnell said, “President Trump’s nominee will receive a vote on the floor of the Senate.”
Another influential Senator, Lindsey Graham (R-SC), commented four years ago, “I want you to use my words against me – let’s let the next President, whoever it might be, make the nomination. You could use my words against me and you’d be absolutely right.” Graham said that in March, roughly six months before the election. Today, Graham has also reversed course, noting, “I therefore think it is important that we proceed expeditiously to approve any nomination made by President Trump to fill this (Supreme Court) vacancy.”
Within the next week, Amy Coney Barret will almost surely be seated on the Supreme Court, because, as Sen. McConnell succinctly said, “We have the votes.”
Finally, it reminds one of a story in the Boston Record more than a century ago when two women were talking of money left to Sarah in the Bible. One said to the other, “Them that has, gits.”’
So, too, says the current U.S. Senate.
Larry Hypes, a teacher at Bluefield High School, is a Daily Telegraph columnist. Contact him at email@example.com