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SCOTUS Agonistes

May 21, 2019 in Economics

By Ilya Shapiro

Ilya Shapiro

No matter how much we might rage against the political calendar
(the bastards are encouraged even if we don’t vote), the 2020
presidential race is upon us. Having finally learned the lesson of
ceding judicial nominations to the Republican Party, all 837
Democrats running for the White House are determined to make the
Supreme Court a campaign issue.

But this isn’t just the usual demagoguery about how the
Federalist Society picks judges to create a world where, to quote
Ted Kennedy’s 1987 calumnies against nominee Robert Bork and
a conservative Court, “women would be forced into back-alley
abortions, blacks would sit at segregated lunch counters, rogue
police could break down citizens’ doors in midnight raids,
schoolchildren could not be taught about evolution, writers and
artists could be censored at the whim of the government, and the
doors of the federal courts would be shut on the fingers of
millions of citizens.”

No, the play now is to pack the Court, among other
“reforms” to our constitutional structure.
(“Reform” meaning, of course, “radical change
that will make James Madison spin in his grave.”)

Democrats have made Merrick Garland the holy martyr of this
crusade. This in retaliation for the Republicans’ violation
of the Constitution’s “Supreme Court nominees must get
hearings and votes no matter what” clause. Senates, the
Democrats claim, are expected to confirm forthwith nominees made by
a president of the opposing party to high-court vacancies arising
in presidential election years. Indeed, that has happened…
as recently as 1888.

The Democrats believe all
this norm-breaking can be remedied only by breaking more norms -
like expanding the Supreme Court, eliminating the Electoral
College, lowering the voting age to 16, restricting political
speech, and giving the Federal Election Commission a partisan

And in 1992 when a young Judiciary Committee Chairman named Joe
Biden said that presidents shouldn’t get to appoint justices
in the last year of their terms, that was totally different… Just
like it was different when Senator Chuck Schumer said the same in
2007, because the presidents then were Republicans.

Not that Senate Majority Leader Mitch McConnell couldn’t
cite longstanding precedent for his own decision to ignore Garland
— the first nominee on whom the Senate took no action since
the nomination of Stanley Matthews in 1881. (A few nominees
withdrew before the Senate could non-act, like Douglas Ginsburg in
1987. Ginsburg smoked pot with his law students, and thus became
the Drug War’s last public casualty.)

To be fair to McConnell, he never claimed to be making anything
but a political argument: That the voters, having in their infinite
wisdom re-elected President Barack Obama in 2012 but then flipped
the Senate …read more

Source: OP-EDS

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