Letter to the Editor / UNILATERAL SUBMISSION or POLITICAL HARDBALL?

By Roger C. Kostmayer

Occasionally, life puts people (especially politicians) in positions where they must choose either principle or power.  The death of iconic Supreme Court Justice RBG immediately raises this dilemma for both Democrats and Republicans.

Article II Section 2 of the US Constitution says the President shall nominate judges of the SC.  Ten months before the 2016 election, incumbent President Obama nominated Justice Garland to fill a vacancy.  Senator McConnell blocked the highly qualified judge on the unprecedented grounds that the people should first pick the next President, and THAT president should then pick the nominee.  Essentially, McConnell and the Republican Senators violated the Constitution and stole the appointment.

The question now is whether this 2016 Republican precedent, allowing the future President to fill an empty SC seat, applies to both parties – or is it only about whatever is best for Republicans.

For the Democrats, there are two possible solutions to avoid unilateral submission.  If a few Republican Senators stand on principle (or hope to be reelected) and refuse to go along with McConnell, he then won’t have the necessary votes.  (Senators Romney, Collins, Murkowski, Graham, Grassley, Gardner & Rubio are possibilities.)  Secondly, the Democrats can decide enough is enough and that it’s time to fight fire with fire.  They can a nuclear option unless they have the same right the Republicans took in 2016: end the filibuster if they win the Senate and (since the Constitution does not specify the number of justices) pack the SC with enough young liberal judges to assure they have a majority on the SC – for a total of 11 or more justices.

In life, principle is usually the better approach, but there are exceptions.  Protecting healthcare for all & the ACA, women’s rights, Roe v Wade, Gay rights, racial and criminal justice rights, and preventing one party from politically controlling our judicial branch of government – all make this crisis a worthy exception.

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