Friday, October 28, 2016

No, The Constitution Does NOT Allow The Senate To Let The Supreme Court "Die Out"

I know I have said this in previous posts, but its worth saying again, if only because it's dangerous to not occasionally ponder its truth:  the only way for anyone to spout conservative rhetoric without going insane is to not listen to what you're spouting.  Especially if you're a member of the so-called "alt-right," the folks who view politics as war by other means.  Still, it's worth listening once in a while, especially to those instances when the spouter inadvertently discloses information compromising to his or her cause.

So it has been recently with someone by the name of Ilya Shapiro, who had this to say on the Web site about the current U.S. Senate blockade of President Obama's nomination of Merrick Garland to the Supreme Court:
...  As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally. ...
No, you did not read that incorrectly.  Mr. Shapiro wants you to believe that the Framers of our Constitution gave us a national government of separated powers, checking and balancing each other, with, somewhere in invisible ink, a clause slipped in saying that the Senate can systematically destroy one of those branches whenever it's in the mood.  True, Mr. Shapiro states that such a position may not be "politically tenable" (jeez, ya think?), but not to worry, you doubters out there. Per Mr. Shapiro, "it's definitely constitutional."

Based upon precisely what?

If you've managed to get through the article without throwing up, you'll have noticed that Mr. Shapiro does not go so far as to back up his helpful reassurances with anything that could be called proof--or, indeed, anything at all, other than his breezy take-it-from-me-you-have-my-word-on-it assurances. That shouldn't surprise anyone who's actually read the text of the Constitution itself, which is not particularly helpful to Mr. Shapiro's argument.

Article III of the Constitution lays out the framework for the national judiciary.  In Section 1, it clearly states (and I quote):
The judicial Power of the United States, shall be vested in one supreme Court ... 
Of course, it goes on from there to talk about lower courts and the rights of judges.  But take notice in that statement of the word "shall."  As any lawyer (myself included) with any basic knowledge of statutory construction can tell you, that language makes the existence of the Supreme Court mandatory.  In other words, the existence of the Supreme Court is not just a good idea.  It's the law. The exact nature, or even existence of lower courts surely isn't mandatory.  The number of judges needed for the Court to function is likewise left to the discretion of Congress.  But not the existence of the Court itself.  Sorry, Mr. Shapiro.  No dying out allowed!

So, why does Mr. Shapiro say otherwise?

Actually, I don't think he intended to do it.  In fact, I think that it's the by-product of what might be politely referred to as giddiness, based on the prospect that the current Garland blockade might, if the Fates are generous and a lot of Democrats forget to vote on Election Day, produce the outcome conservatives want:  a conservative replacement for Antonin Scalia instead of a liberal one.

I can accept that.  Because it gives away the game.  It proves that, contrary to the elaborate dissembling by Senate Majority Leader Mitch McConnell about something called "the Biden rule," the one that Vice-President Biden proposed* but never enacted, this has never been the highfalutin' battle about principle that conservatives would have you believe.  This has always been about the naked acquistion and maintenance of power.

And that pursuit, all by itself, is unconstitutional.  You see, that awful word "shall also shows up in Article II, Section 2, clause 2--the one that states the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court ..."  The double use of the word "shall" in this case makes it clear that the Senate must give its "Advice and Consent." They can say "No," of course.  But they have to say it.  Biden rules need not apply--and, by themselves, probably arent' constitutional.

But that would put Republican Senators, in an election year, in the position for explaining why they are now voting against a judge they had previously approved for a federal appeals court for a promotion for which, on the surface, he appears to be completely qualified.  And they would then have to tell the truth  they're against a liberal Supreme Court.  They don't want to say that, because they know how politically craven that sounds.

So they have to pretend that some "principle" in is play.  But the extension of the blockade proposed by John McCain to all potential nominees of a Hillary Clinton Administration demolishes that arguement all by itself.  The political character of the current Senate majority is now exposed.  And the nation's highest court, its reputation on a slow decline started with Bush v. Gore and the Citizens United decision, has now been formally annointed as a political trophy.  One of our three branches of our government is trying to "nullify" another branch, in an impurely political way for impurely political reasons.  And Ilya Shapiro is cheering them on, pretending--almost successfully--that it's all good.

The Republicans are now exposed for the would-be tyrants that they have always been.  But they can only get away with it if you let them.  They may not always listen to the words that come out of their mouths, but that doesn't mean we have to ignore those words.  Or their potential consequences.

What more can I say?


*It's debatable that he ever really proposed that "rule," but I'll let someone else write about that.

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