A SUPREME COURT NOMINEE WE CAN LIVE WITH

I have come to the conclusion that the prudent action for the Senate to take is to consent to the nomination of the Hon Merrick Garland to the United States Supreme Court.  My conclusion is purely pragmatic.

First, having read many of Judge Garland’s reported opinions, I believe that he is a judge’s judge.  That is, he tries assiduously to apply the law to the facts of the case before him.  In that regard, he is a judge of the same mold as the late Justice Scalia.  Are they philosophically different?  Sure, but that is not a disqualifying attribute, and I suggest that Judge Garland is more intellectually honest than either Justice Sotomayor or Justice Kagan.

Second, I suspect that if the Senate takes up the nomination, it will tie the Warren Wackos in knots.  We may see more Democrats than Republicans voting against the nomination.  Just read the comments from the left.  Intellectual , judicial and legal qualifications be damned—all they care about is putting on the Court a “woman of color,” someone who will increase the “diversity” of the Court.  As is usually the case of the left wing of the Democrat Party, all they care about is the portrait, not the qualifications.

Third, if Senator Clinton is elected, is there anyone who does not think that the first thing she will do is ask the President to withdraw Judge Garland’s nomination so that “the next President can make the nomination?”  Of course she will and the President will acquiesce.  And you can bet that she will pick some looney tunes leftist, probably from the Ninth Circuit—the most often reversed of the circuit courts.  If the Majority Leader lets that happen just to save face, he is not the citizen I always thought him to be.  He becomes just another Harry Reid!

Finally, it will stick a pin in the hypocritical rantings of the Democrat Party—the party that ignored the outstanding qualifications of Judge Robert Bork and scooped up the scurrilous Anita Hill in an attempt to destroy Justice Thomas. 

In fact, the Democrats have little use for the Constitution and have once again attempted to re-write it to fit their own ends.  Then Senator Biden argued in 1992 that the confirmation of a Justice should be delayed so that the “next President” (President Clinton, as it turned out) could make the nomination.  It is only now that he thinks an essentially lame duck President should make the call.  It leads me to suspect that a lot of Democrats are less than confident that Senator Clinton will be elected. 

Still, I am a conservative constitutionalist.  The Constitution makes no mention of how long the Senate may withhold a decision.  In fact, it does not set the size of the Court nor does it mandate any particular number of Associate Justices.  The ability of the Senate to forestall a presidential nomination is just one more of the checks and balances the Framers wrote into the Constitution to protect the States and the People from an imperial presidency. The whinings of the Democrats notwithstanding, there is nothing Constitutionally wrong with delay.  

However, it makes better sense to move forward on Judge Garland's appointment.  The threat issued by Senator McConnell has worked.  The President has nominated a centrist, to the chagrin of his own Party.  I urge the Senate to take up Judge Garland’s nomination and to consent thereto.

THE TROUBLE WITH DEMOCRACY

I am a life-long Republican.  I have voted in every general election (State/Commonwealth and federal) as well as local, off-year, and primary elections since I reached the age of 22.  (I was 18 in 1964, but the 26^th Amendment was not ratified until 1971.)  I have voted for only one Democrat for President—Jimmy Carter in 1976, to my undying regret and shame—although I have split my ticket in many other elections in order to vote for the person I thought best qualified.

And now, I find myself facing a moral quandary.  I hold the sovereign franchise in the highest esteem, especially because I have served with young men who, with their very lives, defended the right to vote although they themselves were not yet old enough to cast a ballot.  I will vote in an uncontested election for dog-catcher in honor of their sacrifice.  But this year………

Why, I ask myself, is the choice being offered to the American people so abysmal this year?  On one ticket, the choice so far is split between an unprincipled (“principle-less”) liar whose moral compass is fixed only on what is best for her, and a self-professed Socialist, whose platform is nothing more than “bread and circuses.”  They got rid of the only candidate I could have gladly voted for, Senator Jim Webb (with whom I served in Vietnam.)  I would have split my ticket for him—in a heartbeat.  He is the only candidate in either party who has moral courage and who saw fit to put himself … "between [our] loved home and the war's desolation!" 

In my own party, it now appears that a blow-hard game show host with no political experience whatsoever may be our candidate.  The only two possible counter-candidates at this point are Senators who have never worked anywhere other than in government.

Why are there no more Thomas Jeffersons, Andy Jacksons, Abe Lincolns, and Ike Eisenhowers?  I propose that there are two answers to that question.

 

First and foremost is the democratization of the nominating process.  The widespread change to binding primaries in the late ‘60s and early ‘70s have, generally speaking, been a disaster for our Country.  Just think of the candidates one party or another have been offered by use of the primary:  George McGovern, Jimmy Carter, Walter Mondale, Michael Dukakis, Al Gore, and John Kerry for the Democrats.  Only Bill Clinton was truly a sound candidate, although if Ross Perot had not run, it is clearly possible that George HW Bush might have won re-election in 1992. 

The Republicans have done a little better: Bob Dole and John McCain, but they were not the strongest, most electable candidates.  Only Ronald Reagan, one of the greatest Presidents in my lifetime (I was alive when Harry Truman was elected in 1948) and in our National history, came from a primary fight.  So, two Presidents, Ronald Reagan and Bill Clinton are the only top tier Presidents (out of 44) to have come to the Presidency by way of the binding primary election process.

Think of the Presidents who have come from open conventions in the strong president eras:  Lincoln, TR, Wilson, FDR, Harry Truman, Ike, JFK.  Before that, Jefferson, Madison, Monroe, and Jackson were chosen by people who were concerned with the political process or delegates to conventions, all of them people who were willing, in the favorite modern catch phrase so beloved of the Democrat Party, to “compromise.”   Eleven of 44, which is pretty good, when one considers the totality of American history.

The Democrats learned their lesson after the McGovern debacle and instituted the “super delegate” into their process.  Although it still allows for run-away “democracy” when a candidate garners enough votes from a few large states early in the process, the threat or ability of Party professionals to block a clearly incompetent candidate is usually there.  I say usually, because Senator Clinton is leading in delegates in part because she has garnered the support of almost all Democrat super delegates who have announced their preference.  The Republican Party also decided to use super delegates to a significantly lesser degree (not more than three per State or Commonwealth and pledged to the candidate who won their home vote). 

Does anyone think that an open primary would come close to nominating Donald Trump for President?  I pray not.  But the "people" have spoken!  To paraphrase, “presidential nominations are too important to be left to the masses.”  For the historically illiterate, that is the exact reason for the Founding Fathers’ creation of the Electoral College.

But there is also another reason that the current system is so fallible—the modern media.  Really qualified candidates, candidates who could become great presidents, are simply unwilling to submit themselves and their families to the predatory, Pulitzer Prize hunting, pursuit of every person with a cell-phone and a blog who thinks that he or she is the equal of William Allen White and Woodward and Bernstein, when they are really the direct descendants of William Randolph Hearst.  Couple that with our modern society’s lust for the vicious attacks that mark “reality TV,” and no reasonable person would be willing to run.  Yes, I know about “Ma, Ma, where’s my Pa?”  and “Continental liar from the State of Maine!”, but the 19^th Century electorate were not bombarded with such tripe 24/7.

So…I hold out little hope for the next presidency.  Perhaps the Nation will learn from its necessary choice of the lesser of two evils in 2016 and opt for a return to the open convention. 

In the meantime, we can hope that the Bismarckian quip from the 19^th Century still holds true: “God watches over drunkards, fools, and the United States of America.”