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article imageOp-Ed: Trump's nominee creates 'Constitutional Crisis' in Supreme Court

By Karen Graham     Sep 20, 2020 in Politics
The death of Supreme Court Justice Ruth Bader Ginsburg about six weeks before Election Day has set into motion what could turn out to be the most severe strain our Democracy, and the Supreme Court has ever seen.
From her deathbed, Ginsburg made her own views about her replacement clear: In a statement dictated to her granddaughter shortly before her death, Ginsburg said, “My most fervent wish is that I will not be replaced until a new president is installed.”
About one hour after Ginsburg's death was announced, Senate Majority Leader Mitch McConnell, a Republican from Kentucky, asserted in a statement that “President Trump's nominee will receive a vote on the floor of the United States Senate.” Keep in mind that Republicans hold a 53-47 majority in the Senate, and as long as all GOP members are onboard, McConnell can get a Trump nominee confirmed.
At nearly the same time that McConnell was making his announcement - a battle plan was being drawn up by Liberal activists, like the anti-Trump group Indivisible, abortion rights organization NARAL, and court advocacy nonprofit Demand Justice. The plan called for a united front that amounted to opposing any Supreme Court confirmation before Inauguration Day.
Ruth Bader Ginsburg was only the second woman ever nominated to the US Supreme Court
Ruth Bader Ginsburg was only the second woman ever nominated to the US Supreme Court
While all this was going on, Demcrats were smashing campaign donation records on the small-donor site ActBlue, and hundreds of mourners were spontaneously gathering on the steps of the Supreme Court, turning the front of the court building into a memorial for the beloved justice.
To say that Republicans are behaving in an unscrpuulous manner might be an understatement. It is interesting that politicians are so quick to forget what they did or said in times past - like Mitch McConnell. When Supreme Court Justice Antonin Scalia died in February 2016, he refused to even give President Barack Obama’s nominee a hearing (let alone a vote), claiming that to do so in an election year was unfair to the American people.
Another Republican, Senator Ted Cruz of Texas, also on Trump's short-list of court contenders, recently asserted: “We cannot have Election Day come and go with a 4-4 court." Of course, he forgets that in 2016, he completely backed McConnell's reason for maintaining a vacency during an election year.
Senator Ted Cruz  pictured in June 2020  is on a list released by President Donald Trump of potentia...
Senator Ted Cruz, pictured in June 2020, is on a list released by President Donald Trump of potential Supreme Court nominees
Tom Williams, POOL/AFP/File
Senator Lindsey Graham, a Republican from South Carolina has often held that the American people should decide the outcome of a Supreme Court vacancy during an election year, however, this time he has changed his mind - a true Republican to the end.
Now, we know that the GOP is not going to change horses in mid-stream, so that leaves us with in the world the Democrats plan to do if McConnell manages to get a Trump nominee to the Supreme Court confirmed. House Minority Leader Chuck Schumer, a Democrat from New York, issued a terse statement on the matter: “Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year.”
The philosophical case for reforming the Supreme Court
There are a number of reasons that the Democrats would have for reforming the Supreme Court. Number one, there is nothing in the Constitution that says we have to have nine justices. Second reason - If Trump is able to get a nominee to replace Ginsburg confirmed, this would mean that Republicans have nominated a 6-3 majority on the Supreme Court.
The make-up of the US Supreme Court
The make-up of the US Supreme Court
This setup would be virtually impossible for Democrats to change through ordinary means - regardless of future elections. But this is not exactly how our system of Government with its checks and balances is supposed to work. But, this is what we have, based on a strong form of judicial review that emerged in the late 19th century, when the Supreme Court usually went along with the constitutional views of the majority party in power.
When you think of it, a Supreme Court ruling in favor of a minority party would keep the majority party from governing effectively and would be neither legitimate nor politically stable. The Supreme Court has been controlled by a minority party before in this nation's history - including the early Jefferson administration, the Civil War and first years of the New Deal.
This type of political control of the Supreme Court in all cases led to constitutional crises that ended only when the court itself backed down. Now, Trump is trying to get a nominee confirmed just before or just after an election in what is called a lame-duck session.
This is what happened with Thomas Jefferson just a few days before he took office. The Judiciary Act of 1801 was passed by the lame-duck Federalist-dominated Congress five days before John Adams's term expired.
John Adams  on the left  painted by Gilbert Stuart and Thomas Jefferson  on the right  painted by Re...
John Adams, on the left, painted by Gilbert Stuart and Thomas Jefferson, on the right, painted by Rembrandt Peale
National Art Gallery
Packing the court
The Judiciary Act of 1801 created 16 new federal judgeships, positions which President Adams promptly filled with Federalists. The same act reduced the number of justices on the Supreme Court to five Justices - one less than the six called for in the Judiciary Act of 1789 - in an attempt to limit incoming President Thomas Jefferson’s appointments to the high bench.
This political crisis led to a very famous case that centers around the establishment of judicial review in the United States. William Marbury was appointed by John Adams to the office of justice of the peace for Washington County in the District of Columbia. He was just one of about 47 appointments to lower courts that Adams made.
The new legislature under Jefferson immediately repealed the Judiciary Act of 1801, and Marbury filed suit because his appointment to the bench had never been delivered to him. Marbury asked the Supreme Court to order the Jefferson administration to give him a formal letter of appointment.
This set up a direct confrontation between the Supreme Court and the Executive and Legislative branches of government. If the Supreme Court did assert that Marbury was to have the appointment, the Jefferson administration would ignore the court - not something the highest court in the land would want.
Chief Justice John Marshall was the fourth Chief Justice to be appointed to the Supreme Court.
Chief Justice John Marshall was the fourth Chief Justice to be appointed to the Supreme Court.
Rembrandt Peale - Virginia Museum of Fine Arts
The new Chief Justice of the Supreme Court, appointed in 1801, just happened to be John Marshall, only the fourth Chief Justice to be appointed at that time. Also, at that time, in 1801, the Supreme Court was more an afterthought to the government, lacking any prestige or respect. Marshall changed all that.
In his opinion in Marbury v. Madison, the chief justice ingeniously expanded the court's power without directly provoking the Jeffersonians. Simply put, Marshall wrote that acts of Congress in conflict with the Constitution are not law and therefore are non-binding to the courts, and that the judiciary’s first responsibility is always to uphold the Constitution.
Marshall was, of course, referring to the Judiciary Act of 1789. Marshall did write that Marbury had a right to his appointment but ruled the Court had no authority to order the Jefferson administration to act, since the section of the Judiciary Act that gave the Court the power to issue an order was unconstitutional.
Marshall s famous line from Marbury v. Madison on American federal courts  power to interpret the la...
Marshall's famous line from Marbury v. Madison on American federal courts' power to interpret the law, now inscribed on the wall of the U.S. Supreme Court Building in Washington, D.C.
Marbury v. Madison was a landmark in American constitutional history because it was the first time the high court had ever declared an act of Congress unconstitutional. It would not happen again for over 50 years. This power, known as judicial review, provides the basis for the important place that the Supreme Court occupies in American life today.
Today, the power of judicial review is used sparingly by the Supreme Court. At the same time, the court can do nothing to stop the whims of a political party from packing the court with political appointees who will decide in their party's favor on Constitutional questions, and that is not a good thing for our Democracy.
Yet, that is exactly what is happening today. The president and Senate control the nomination process, and nothing in the U.S. Constitution prevents them from filling a vacancy on the court, even though it goes against the dying wish of Justice Ginsburg.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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