Please, WAIT!!!

The first word carved in the stone of the Supreme Court building is “EQUAL”. That may be the case because inequality, unevenness, partiality or caprice in the application of law is a proven red flag that, somewhere nearby, justice is undergoing an assault.

Our judicial system and its objective, conveyed in those four succinct words “EQUAL JUSTICE UNDER LAW”, is among the crowning achievements of humankind so far. It unlocks the possibility of everything else constructive our species has and might yet bring forth. It stands as the alternative to the barbarism of “might-makes-right”, of the “whoever draws and shoots faster” method of resolving inevitable disagreements among human beings. The Supreme Court of the United States might well be the capstone of that achievement, a monument to our civilization. Yet in a story packed with irony, the integrity of that institution is itself under assault from the decidedly unequal handling by the Senate of nominations to fill the most recent Supreme Court vacancies caused by the death of a justice.

We are well familiar with the circumstances if not the entirety of the facts. In 2016, following the loss of Supreme Court Justice Antonin Scalia, the Republican majority of United States Senate refused to consider the Democrat President’s nominee to fill the vacancy. Whether or not that refusal violated the letter of constitutional law or simply its spirit is a matter of debate detailed elsewhere in these essays. But the Senate’s action (or inaction) was rationalized at the time with an argument that had just enough plausibility and merit (that voters should have a say in setting the direction of the court) that the delay was not seriously challenged, and filling the vacancy was deferred for nearly a year.

While many (mostly Democrats) doubted the rectitude of the Senate’s delay at the time, the possibility nevertheless remained that the maneuver, while doubtlessly opportunistic from a political standpoint, nevertheless remained within the bounds of institutional decency and may not have broken but merely stretched the constitutional rules of appointments. But the loss of Justice Ruth Bader Ginsburg has challenged the Senate, especially as it remains under the same leadership and with many of the same sitting senators it had at the time of the Scalia vacancy.

By dying when she did, Justice Ginsburg placed her last demand upon the Senate, to come clean. The Senate can no longer hide from the constitutional sin it committed in 2016 through its handling of the Scalia vacancy. Its choice now is either to redeem itself by deferring action on the Ginsburg vacancy, or to consent to the appointment approved this week by the judiciary committee and thereby to admit beyond any and all reasonable doubt that the Senate has violated the principle of equal justice, and the intent of the Constitution.

Thus doth she scream “Please, WAIT!!!”

[Next Essay, More on the Appointments Clause and its subversion]