SIX = = = AN OPEN LETTER TO EVERY SENATOR

The arms race over judicial appointments, particularly to SCOTUS, appears to be mere days from a point of no return. If the relative balance in perspectives on the court is upset as is currently proposed, one may reasonably expect the Democrat minority at their next opportunity to seize upon technical arguments and correct, if not override, the imbalance by increasing the number of justices. They would be following the same rationale employed by the Republican majority in 2016 following the Scalia vacancy, when “nothing in the rules” prevented nearly a year’s delay filling it.

No one seems to be asking whether the court works better or worse with a balanced and diverse range of viewpoints, or with a sufficient yet manageable number of qualified and capable justices. Instead all ask how to get rulings they particularly desire. Each side seems so preoccupied with exploiting tactical advantage that all have lost sight of the greater truth: we should be doing our best to run the country over the long term, not waging ideological civil war over the day’s fashionable cause. At what point shall we turn away from mutual destruction and rediscover common purpose? Why not now?

Contained within an entire Constitution spread across four pages of parchment, the language of the Appointments Clause was necessarily brief and thus potentially open to interpretation. The phrase “by and with the advice and consent of the Senate” was surely included to prevent an opportunistic executive from appointing the unqualified or unscrupulous. It seems unlikely the Founders intended that the Senate could stonewall the appointment process and through attrition conceivably put an entire branch of government out of existence, though “nothing in the rules” precludes it.

From that viewpoint it appears to me the spirit and intent of the Appointments Clause was mightily abused in 2016 following our loss of Justice Scalia. The issue might have been argued more vigorously at the time were it not for the rationale offered by the Republican majority for refusing to consider Judge Garland’s nomination, namely that "the voters should have a say in determining the direction of the court." The evident necessity of this justification strongly suggests that even the majority was concerned a constitutional transgression might be taking place over its handling of the Scalia vacancy.

Any doubt of that has been stripped away by efforts now to fill the Ginsburg vacancy, because the rationale of 2016 is nowhere to be found, voiced as it was at the time yet disavowed today by at least 27 senators still serving. In this manner the Senate stands ready to violate the core principle of EQUAL JUSTICE UNDER LAW by exercising its part in the appointments process in a decidedly uneven fashion.

The only way the Scalia vacancy’s manner of fulfillment would not be a transgression is to apply the same standard this time. But if the 2016 rationale doesn’t apply in 2020, it cannot have been justified in 2016. While filling the Ginsburg vacancy in record time might be justifiable in itself, in the context of 2016 it is unmistakably wrong.

To atone for the transgression made over the Scalia vacancy almost five years ago, the Senate would ideally defer action on the Ginsburg vacancy but if necessary must reject the nomination of Judge Barrett through no fault of her own. Should President Trump be reelected he would be at liberty to nominate her again.

That a senator serving today may not have been serving in 2016 provides no relief from responsibility to correct the prior fault. The clock cannot be turned back. Deferral is the only remaining remedy to avoid a dangerous escalation. Failure to own up to the mistake seems likely to cost the Senate, the Court and the nation far more in lost moral authority and integrity than it could possibly hope to gain from a temporary shift in the mood of the Court.

The majority could proceed as planned, congratulate itself for mastery of parliamentary nuance and start preparing for the next battle (probably over court stuffing.) Or it could be horrified at what it and the loyal opposition have become, and step back from the precipice. All members of the Senate could start anew by resurrecting and practicing professional courtesy toward one another (at least in public), then by seeking consensus to clarify the limits of executive and legislative power with regard to appointments at all levels, and to specify the size of the Court so we do not suffer this crisis again. That would require solemn commitment from “the other side” to lay down their arms and to refrain from taking them up again should and when they gain the majority, and for “one’s own side” to trust that they would honor that commitment. If that risk cannot be taken, perhaps we have already stepped off the ledge toward whatever mercy lies below.

Circumstance has created this crisis, but with it the opportunity for even a small number of principled players to change a history otherwise authored by those so consumed by allegiance to agenda that they would and will destroy that which all have sworn to support and defend. I hope you and your fellow senators will consider this chance to change the history currently being written. One wonders if the firm of Scalia and Ginsburg has anything to do with arranging the opportunity before us.

Sincerely,

Dave in Clayton NC

October 19, 2020