Let the Tail of the Snake Eat the Head
As an America-hating leftist, it is without a doubt an unpopular opinion that I fully support Trump, odious as he is, nominating and receiving a senatorial hearing on his nominee for the Supreme Court. I can affirm I likely agree with little of what Judge Barrett believes personally, religiously, and as a Jurist. I hope for a miracle where she is not confirmed. I also hope to find a tin can of money in my back yard. Each is equally likely to occur.
But Trump, as president, a phrase I can barely write without utter despair and disdain, has a constitutional right and obligation to fill the vacancy on the High Court. I do not believe the people’s voice should be heard in this matter. When it comes to the power balance of the three branches, while populism has rightly made the executive and legislative more accountable to the public, the position of judge requires shielding from the whims of the mob. Or in this case, the whims of an ugly time in US politics, as we slide potentially into a quasi-fascist state with a Judiciary packed with far right, ill-qualified jurists to do the bidding of the wealthy and powerful. Still, I support the system that shields that judiciary from interference from the public.
Even if that judge is Brett Kavanaugh or will more than likely be Amy Coney Barrett.
Donald Trump as the elected president owns the right to appoint judges. The Senate owns the responsibility to affirm or deny his choices. That they have failed in their duty according to many is not here the point.
Use the constitutional system is the point.
Let Barrett sit on the Court. Let Trump throw a fit about election night fraud. He throws a fit almost every hour about every imaginable slight. If, and I hope so, Biden and Harris trounce him definitively, his protestations will matter little. The presidential transition will be tough; the Senate will be the most active as a lame-duck in recent memory.
Mitch McConnell has demeaned the Senate into a laughingstock while he packed the courts with his cronies and those designed to roll back the regulatory and welfare state. It was a long project and he succeeded at it. History will have much to say about his savvy as a politician. Hopefully, Amy McGrath will finally be the one to remove him from power.
But. McConnell has the authority under the rules of the Senate to do the things he is doing. As vile a cretin as he is, and he is one of the worst of a bad bunch, as the majority leader, he is empowered to set the tone of the Senate’s agenda.
But here is where the hope and change come in.
The two substantial things which must occur are the Biden takeover of the White House and the Democratic takeover of the Senate. Instead of bemoaning “voter choice” on the anti-democratic by design Judicial Branch, start by changing the rules.
Barrett gives the court a 6–3 unbreakable majority. Change the number of Justices. Nine robes are not a special number. In fact, nine intellects seem an especially small number of judges to decide laws affecting hundreds of millions of people. Any vote breaking odd number would be fine. Make it 103. Or 11. There is firm historical ground to stand on and it is a perfectly legal thing to do. Barrett can be a menace to decency for a few months at most then outflanked by what would no doubt be an army of Merrick Garlands. Or, if Biden has a sense of cosmic snark, seating Obama.
Second, in my armchair legislating, pass term limits on the judiciary. Or mandatory retirement. Make it 60. Barrett is 48. That is 12 years we’d have to suffer her nonsense. This brinksmanship with judges cannot go on. Firewall the appointments changes. 50 years before the law expires or can be changed without a massive majority. Create roadblocks for either party. I know politics is a dirty business, but at least make everyone wrestle in the same mud. Respecting current social distancing rules of course.
I do not know if Medium has a chat or reply feature, but if it does, tell me what you think.