Justice for All?

That's something that Democrats absolutely don't want.

With the announced retirement of Supreme Court Justice Anthony Kennedy, President Trump has the opportunity to nominate the second Supreme Court Justice of his first term.

Democrats want no part of giving a Republican President - especially Donald Trump - an opportunity to "stack" the highest court in the land. (Of course, they have no problem if a Democrat President is presented with that opportunity; President Obama also nominated two justices to the bench).

So Chuck Schumer, who never met a camera he didn't want to jump in front of, is calling for Republicans to "honor the precedent" set when Mitch McConnell refused to hold confirmation hearings in 2016 for a potential third Obama nominee, Merrick Garland, because it was an election year and that appointment should be reserved for the new President.

(McConnell's gamble, by the way, was most fortunate for Republicans; Garland was a moderate jurist, but had Hillary Clinton won the 2016 election, can you imagine the kind of liberal activist judge she'd have appointed to the high court?)

But wait - there are a couple of nuances to consider. First, McConnell's refusal to hold hearings to confirm Garland was not actually the precedent for this argument. In 1992, then-Senator Joe Biden - a Democrat - set the precedent by declaring that, if a vacancy arose during the remainder of President George H.W. Bush's term, nomination hearings should be delayed until after the election. Indeed, in refusing to hold hearings on Garland, McConnell stated that he was invoking "the Biden Rule."

Second, those arguments against holding hearings during an election year were during Presidential election years. The logic behind them was that, given that a new President would be elected in a matter of months, the people's will, as would be exercised in that election, should be considered in the timing of the nomination of a Supreme Court justice.

Partisan political ploy? Yes. But one based on a defensible argument related to respecting the will of the people? Indeed.

This year is not a Presidential election year. If confirmation hearings on Kennedy's replacement are held after the election, Donald Trump will still be President. (Please, don't even try to go down the impeachment path - only Maxine Waters is bat-poo crazy enough to think that's going to happen.) The Dems merely hope that they'll win enough seats in the midterms to be able to block any Trump nominee they don't want, meaning they'll hold out until he nominates the second coming of Ruth Bader Ginsberg.

My advice to the Democrats would be to gamble carefully. Mitch McConnell got lucky in that Trump won, and instead of Obama's third nominee, or Hillary's first, we got Neil Gorsuch. Dems, the Republican majority is sufficiently slim that you have some clout today, plus you have never-Trumpers like John McCain in your camp. What if, instead of gaining seats in the midterms, you lose them (which, given your outrageous antics of late, is a distinct possibility)? Then, any Trump nominee - even the most conservative of jurists - could breeze through the confirmation process with nothing more than the usual evening news soundbites from you during the hearings.

The Democrats, in trying to gin up public support for their push to delay a second Trump nomination this year, are using Roe v. Wade, trying to fear-monger the public into believing that the landmark abortion decision might be reversed with another Trump nominee to the court.

There are three reasons that people needn't or shouldn't worry about that. The first is based on simple fact, the second is based on history, and the third is based on Constitutional law, which most Americans don't understand.

Fact: There will be at least one more Donald Trump nominee to the Supreme Court, and perhaps two. Kennedy's retirement is a done deal, so that's one. And Justice Ginsberg is 85, and has had health issues. So there is a perfectly reasonable chance that she won't stay on the court for many more years. So accept it: Trump will nominate at least two justices to the Court.

History: Roe v. Wade passed by a 7-2 vote of the nine justices on the Court. Of the seven voting in favor, five were nominated to the bench by Republican Presidents; only two by Democrats. And of the two dissenting justices, one was appointed by a Democrat.

Moreover, to the "stacking the Court" argument, Presidents Obama, Bush II, Clinton and Bush I each nominated two justices to the bench. Reagan nominated three, Carter, zero, and Ford, 1. Nixon, a Republican, nominated four - three of whom voted in favor of Roe v. Wade. LBJ nominated two, and JFK, a Democrat, nominated two - one of whom dissented against Roe v. Wade. Ike, a Republican, nominated five - two of whom voted in favor of Roe v. Wade. The only justices who voted as one would expect based on the party of the nominating President were Justices Douglas voting in favor (an FDR nominee), Marshall also voting in favor (an LBJ nominee), and Rehnquist dissenting (a Nixon nominee).

So there's no guarantee that a Republican nominee will vote consistently along the lines desired by conservative voters, and vice versa. Indeed, the justices are supposed to be independent voices, though some lean more activist (read: liberal, open to legislating from the bench, which tends to favor liberal causes) and some more originalist (read: conservative, holding to the original intent and meaning of the Constitution, which tends to favor conservative causes).

And that distinction leads us to a discussion of Constitutional law. The Constitution established that the people would be largely self-governing through the States, as opposed to a centralized, all-powerful Federal system. This is what defines a Democratic Republic, which is what the U.S. is, vs. a pure democracy. It's why we have the Electoral College (which the Dems oppose when they lose the electoral vote but win the popular vote, yet favor the rest of the time). Heck, it's why we bother having states and state governments to begin with. The framers knew all too well that a centralized Federal government can all too easily morph into a monarchy or a dictatorship.

Thus certain issues are to be decided at the state level, according to the will of the people. Two examples of this are abortion rights and the right to same-sex marriage.

Now, before any reader goes all liberal hysteria on me, let me say that the following comments speak only to Constitutional law as it pertains to these two matters, and not to my views on the matters themselves. I'll keep those views to myself. If anyone wants to engage in personal, one-on-one, civil discourse regarding them, I'd be happy to share my views, and listen to theirs. Also, let me remind readers that I am neither Democrat nor Republican; I see the good and the bad in each party. Mostly the bad, because there's not all that much good in the current environment.

The clearest evidence that these are states' rights issues can be found in the Fourteenth Amendment, which was used both as fodder for the seminal cases that decided them, once and for all, against the intent of the Constitution, and for the dissenting opinions. That Amendment states (I've italicized the sections that are germane, legally speaking, to these cases):

• That "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(The remaining Articles of the Fourteenth Amendment have to do with the apportionment of Representatives, the Electoral College, eligibility as a Senator, Representative or elector, public debt, and the powers of Congress to enforce the Amendment.)

The clause "citizens ... of the State in which they reside" reinforces the sovereignty of the States. And the due process clause is the key to the arguments both for and against Roe v. Wade and Obergefell v. Hodges, which decision led to the declaration of same-sex marriage as legal in all 50 states. The other key pillar of those arguments was the "equal protection of the laws" argument, but that was found to be a straw man in the dissenting opinions in both cases. (I may explore this last topic further in a future post.)

But first, some background. The Fourteenth Amendment was passed and ratified by the states in 1868 as part of the Reconstruction Amendments in the aftermath of the Civil War. Thus, it was intended to cure and/or clarify some distinctions that arose out of the end of slavery and the reunification of the Confederacy with the Union.

This next point is very important: at the time of the passage of the Fourteenth Amendment, and for many years thereafter, both abortion and same-sex marriage were illegal in numerous states. During the ensuing 100+ years between the Amendment's ratification and both Roe and Obergefell, there were no meaningful challenges to the legality of those matters on the basis of the due process clause.

Why? Because the states, the people and the courts accepted the fact that, given that those state laws existed at the time of the Fourteenth Amendment's ratification, and the lack of legal challenge in the ensuing century, clearly these matters were within the purview of the citizens of each state to decide by majority rule. In other words - these are states' rights issues. And were accepted as such under the Fourteenth Amendment when it was ratified, and for more than 100 years thereafter.

So what changed? Well, as the decades passed, some states changed their laws (though others didn't; nearly half the states' abortion laws remained unchanged from 1868 to 1973). Prior to Roe v. Wade, abortion was legalized in a number of states. It's just that, if you lived in a state where it was illegal, you had to travel to another state to get a legal abortion. Since the poor tend to have more abortions than other women (for a variety of reasons we won't delve into here), this was seen as an unfair burden by the pro-legal abortion crowd (the term "pro-choice" is an attempt to put lipstick on a pig, and actually detracts from the cause of those who adopt the label, so the Curmudgeon prefers to err on the side of accuracy).

Likewise, prior to Obergefell v. Hodges, same-sex marriage was legal in some states, but illegal in others, which again meant if you lived in a state where it was illegal and wanted to marry your partner, you had to get married in another state. (This issue is less related to socioeconomic level.) But in either case, there was nothing stopping one from going to another state to do what they wanted to do, with no legal ramifications when they returned home.

In the case of both issues, other states were beginning to consider changing their laws to legalize abortion or same-sex marriage in the years leading up to these Supreme Court cases. The people in those states wrestled with and debated the issues. Some states held votes in which the legalization effort failed. That's part of the Democratic process; you put the matter to a vote of the people, try to educate voters in support of your case, and ultimately let the majority decide.

Alas, Democrats don't like democracy. Supporters of these issues celebrated when they were placed on ballots in an increasing number of states. But then they couldn't accept the outcome if it didn't go their way. (This is increasingly common among Dems; we saw it when Bush defeated Gore, again when Trump defeated Hillary Clinton, and we saw it with these two legal issues. In fact, what the right refers to as "Trump Derangement Syndrome" is really just "Sore Loser Syndrome." It wouldn't have mattered if Trump had defeated Clinton, or if Kasich had defeated Bernie Sanders; the reaction from the left would have been the same. Democrats appear to increasingly favor permanent rule by one party - you know, like the Soviets had.)

So the Dems hired lawyers and took their cases to the courts, chasing them all the way to the highest court in the land. And in both Roe v. Wade and Obergefell v. Hodges, the Court chose the activist route. They chose to legislate from the bench. They chose to substitute their judgment for the will of the people.

In other words, they chose to usurp Democracy, to subjugate states' rights.

That's where the Fourteenth Amendment becomes the basis for the dissenting opinions, and in eloquent fashion. The dissenting opinion to Roe v. Wade penned by Justice White stated (emphasis added):

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

Boom. And from Justice Rehnquist's dissent (no emphasis needed, as the entire statement would be in bold font):

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

Justices Roberts, Scalia and Thomas wrote similar dissents in the Obergefell case, noting that the due process and equal protection under the law clauses in the Fourteenth Amendment had not been violated. Chief Justice Roberts noted that advocates of same-sex marriage lost their opportunity for acceptance through public debate, as the decision closed the matter from further consideration by the states. Similarly, Justice Scalia stated that the Court's decision effectively robs the people of "the freedom to govern themselves", noting that a rigorous debate on same-sex marriage had been taking place and that, by deciding the issue nationwide, the democratic process had been unduly halted. And Thomas noted that the Justices voting in favor had based their decision on moral judgment vs. the rule of law, as was evident in the majority opinion penned by ... none other than Justice Kennedy, a Republican nominee.

The upshot of all of this is that:

1. Every President has the right to nominate candidates to open seats on the Supreme Court. Even Presidents you don't like, or from the party you aren't registered with.
2. Some Presidents have the opportunity to nominate multiple candidates; in fact, since FDR, only two Presidents have nominated fewer than two candidates (not counting Trump, who will almost certainly nominate at least two). Also, since FDR, Democrat Presidents have nominated 18 justices to the bench, the same as Republican Presidents to date (Trump will soon move the needle to 19 nominees by Republicans). Thus there is near-perfect balance in appointments by Presidents of the two major political parties - not that balance is what the Democrats are after.
3. The party of the President nominating a justice has little to no bearing on how that justice will decide cases, particularly in the two most egregious examples of activist jurisprudence in the Court's long history. In other words, a second Trump nominee does nothing to increase the likelihood that Roe v. Wade will be overturned.

Roe v. Wade should never have been decided by the courts anyway, as it is clearly a states' rights issue, so if it is eventually overturned by a subsequent Court, Constitutional law will have been reinstated, and it will rightly become a matter of the people's will once more. Then we can all debate the matter on the merits, instead of running to the Supreme Court to get our way, like some petulant child whose mommy and daddy say "No," so they run to grandma.