Through the 1973 Roe v. Wade decision, the 1857 Dred Scott case, and back to the beginning of the republic, Supreme Court politics have mattered more than it’s been quite polite to acknowledge. The notion that justices rule always strictly on law rather than by reference to their political leanings has been a genteel fiction. The myth of purity has never been more utterly exploded than it is today.
Riddled with hypocrisy, the matter arises again because Justice Samuel Alito was hospitalized last month, and Democrats have a shot at winning the Senate in November’s elections. If a court vacancy opens this summer, President Donald Trump could nominate a conservative, and the Republican majority in the Senate could confirm him or her before voters cast their ballots. But if Democrats take power, they will block any Trump nominee. They promise this.
“Obviously, we should not be proceeding with a new” nominee, said Sen. Chris Van Hollen (D-MD), who is tipped as a successor to the unpopular Senate Minority Leader Chuck Schumer (D-NY) and thus must be aggressive enough to keep the radical leftist base of his party sweet.
Sen. Tim Kaine (D-VA) put the matter, as he tends to, more starkly and less honestly, saying, “What Republicans sort of taught us with that is it’s just about kind of a pure power move … we learned a lesson that we’re not going to forget.”
Kaine and Van Hollen were referring to former Senate Majority Leader Mitch McConnell’s (R-KY) decisive move to prevent President Barack Obama’s nominee, Merrick Garland, from getting a hearing in 2016, the last year of Obama’s presidency under a Republican-controlled Senate.
Being within six months of the end of a presidency is rather different from being 33 months away from it, as we are now, but let’s not quibble over matters of degree.
What is more striking about Kaine’s comment is the suggestion that Democrats learned their “pure power move” from Republicans. This is 180 degrees from reality. It was the late Senate Majority Leader Harry Reid who nuked the filibuster to confirm federal judges — he did it by the simple expedient of having his party vote that a rule meant the opposite of what its text said. Only after this did Republicans play the game as ruthlessly as the Left.
Pretending that words mean the opposite of what they say is what distinguishes Democrats’ approach to law. They abhor conservative justices like Alito, who, as originalists and textualists, rule according to what the words of the law say. Democrats choose justices who say a “living Constitution” means the law’s meaning can be properly distorted so it no longer means what was originally intended, but allows for whatever is in the Left’s agenda.
POPE LEO CAN’T HAVE IT BOTH WAYS
Varying the meaning of words is the opposite of what fairness and justice require of the law. If there is one thing most people agree on, it is that the law should have fixed meaning, the same today as yesterday. This principle gives the lie to the notion that the Supreme Court should be “balanced” between originalists and living constitutionalists — a recipe for judicial fiat and capricious, politicized justice if ever there was one.
It’s hoped that Alito leaves sooner rather than later, so the law can still mean what it says, not what people like Van Hollen and Kaine wish it said.