As if the last four years were not divisive enough, we now have a fight over a Supreme Court appointment just weeks before one of the most contentious elections in U.S. history.
I’m not even going to ask what else could possibly happen.
So now my social media feeds are lighting up with those on the left screaming about how the Republicans are evil incarnate and pointing out their blatant hypocrisy in vowing to push this appointment through despite all of their lecturing in 2016 about how we should not fill vacant SCOTUS seats during an election year. The Democrats are right about that. Meanwhile, those on the right are screaming about how the Democrats are evil incarnate and pointing out that they would definitely be doing the same thing in the same circumstances. The Republicans are right about that.
There are no good guys in this. The dishonest antics on both sides are driving us closer and closer to the collapse of our beloved Republic. The steps that were taken to get us to the point of mutually assured destruction were completely predictable. I have been talking and writing about it for years. The path to get us to the point was clear to me.
As a reminder (to myself as well as for others), here are some of the times I have written about this:
From 2015-2017, I was writing my series of essays on the Constitution and the system of government it created. In “Essay 26 – The Judiciary Revisited”, I discussed how the Judiciary has become more and more political over the years:
“Things are getting so bad with the divisiveness that without a serious change of course, I predict things will progress such that within the next decade, the Supreme Court may very well be so stacked one way or the other that we’ll be operating in full judicial tyranny. This should concern everyone.”
I continued on with this description of the chain of events that led us here:
“Picture this scenario that is currently playing out:
During the Obama presidency, Republicans were successful in blocking many of President Obama’s nominees to the lower federal courts by use of the filibuster rule in the Senate.
The Senate rules required at least 60 votes in order to proceed with a vote. So to get around that, the Democrats (who controlled the Senate at the time) decided to remove the filibuster option for lower court nominees (so only a simple majority of 51 votes were needed). At that time, they only did it for the lower court nominees, leaving the filibuster (60 vote requirement) in place for the sacred Supreme Court nomination process. The Republicans were furious that the Democrats would change this long-standing Senate rule.
Shortly there after, the Republicans gained control of the Senate. Did they change the filibuster rule back? No.
In 2015, the Supreme Court was basically split with 4 “conservative” justices, 4 “liberal” justices and 1 swing vote. Many major decisions were decided 5-4, making each of these issues very controversial and contentious.
In early 2016, a conservative justice of the Supreme Court died, leaving a vacancy to be filled. Democrats believed this was their chance to substantially change the balance of the Supreme Court to their favor. President Obama nominated a replacement and the Republicans, in charge of the Senate, refused to consider the nomination, claiming it wouldn’t be prudent in an election year. They succeeded in blocking the appointment of a replacement by President Obama.
The Republicans won the election in 2016 and proceeded to nominate a conservative justice. However, because the filibuster rule was left in place for Supreme Court justices, the Democrats could simply filibuster the nomination and require a “consensus” nominee that could get 60 votes to proceed.
The Republicans were in no mood to be blocked and decided to use the “nuclear option”…they removed the filibuster rule for Supreme Court justices so that they only needed 51 votes to approve the nominee. Remember that the Republicans were furious when the Democrats did this for lower court nominees, but instead of putting it back the way it was, they went a step farther! Of course, the Democrats were furious that the Republicans would do this, claiming they “stole” a Supreme Court justice for the conservative side.
It is these types of actions that have created a highly politicized judiciary. And it’s going to get worse. Every time one side crosses a political line to achieve their partisan goal, the other side takes it another step as soon as they gain control.”
And here was the kicker:
“So what’s next?
I predict that if/when the Democrats take back control of Congress and the Presidency, they will proceed to “right the wrong” that they believe was done. Since it’s totally up to Congress to determine how many Supreme Court justices there are, I believe they will adjust the number in order to achieve a solid liberal majority Supreme Court.”
At the time, not too many people took that seriously. But today, many serious people are calling for it.
Then, in May of 2018, I wrote a piece called, “Please Just Stop”. This was an article that pointed out a number of stories on the right that were completely ginning up controversy about uncontroversial events. Basically, creating a BS story line to bolster Trump’s BS narrative about the Russia investigation. I talked about the principles that make America exceptional:
“To me, conservatism is all about conserving what makes America exceptional. And what makes America exceptional are the principles upon which the Republic was created. It’s these principles that we are (or at least, should be) doing everything we can to conserve. Because without them, our exceptionalism is gone. Our Republic is no more.
The principles that need to be conserved include that of limited government, self-government by virtuous people electing virtuous leaders, federalism, natural rights, republicanism, and knowing the dangers of democracy and the tyranny of the majority.”
I lamented about what the dishonest narratives were teaching people and how it was not helping the cause of conserving those principles:
“You are teaching them that virtue doesn’t really matter after all. All that matters is winning at all costs.
You are teaching them that somebody like Trump really is an ideal person for President. One of, if not the, best ever, in fact.
You are teaching them that brute force from the majority is the way to get things done.
You are teaching them that limited government isn’t really that important as long as the government is doing what “we” want it to do.
You are teaching them that the principles, the Constitution, the system of separation of powers and checks and balances all don’t really matter as long as our guy wins and the other side cries.”
I concluded that piece with this:
“The result of all of these lessons is a backlash so big, that it will further degrade the principles that we are trying (needing) to conserve. When the other side gains power (and make no mistake, they will), we will have destroyed any sense of reason that was left and they will proceed to complete their destruction of what’s left of the Constitutional framework. It will take just a few steps…abolish the Electoral College, get rid of the filibuster in the Senate, increase the number of Supreme Court Justices.
That’s what all of this hyper-partisan, us vs them, win at all costs nonsense is leading to.”
Next, there is my article from July of 2018, “If Trump Picks Mike Lee For SCOTUS…” This was an analysis of why I would not praise him if Trump appointed someone to the Supreme Court that I would otherwise be pleased with (I very much respected Lee at the time). One of the points I made was this:
“Lastly, I think people are putting way too much weight on the significance of the Supreme Court. Our system was not developed such that the Supreme Court, and the appointment of one person, would be so consequential. It’s a sign of a broken system and merely appointing “good” justices is not going to fix it. Yet, it seems way too many people think so. They believe that Republicans are winning and now the Supreme Court will be a conservative court for the foreseeable future.
That thinking is missing the big picture. Everything Trump has claimed to have accomplished during his Presidency (you know, more than any other President in history), including the Supreme Court appointments, are all temporary in nature. If the Dems take control of Congress and the Presidency in 2020, everything Trump has done can be reversed very quickly. And believe me, if there is a strong “blue wave” that makes that happen, they will fully believe they have a strong mandate to do so immediately.”
And then this:
“If the Dems take control of Congress and the Presidency in a big blue wave, they are going to be eager to reap the rewards. Remember, elections have consequences. They are going to be out for blood…red blood. They are going to be emboldened by what they will perceive as a huge mandate to reverse all of the Trump lunacy, including the Supreme Court.
They already believe that the Scalia seat was outright stolen from them by the Republicans. In their view, it was rightfully Obama’s pick. So, they believe they are owed one for that. They also believe that the Presidential election was likely stolen from them through the Russian interference and Trump colluding with them, so Kennedy’s seat should also have been theirs.
So how will they rectify these injustices?
Simple, they will just add more justices to the court (aka “pack the court”), and they will feel fully justified in doing so. Why? First, because “Trump”, but also because it’s the next logical step in the breakdown of our systems of checks and balances.”
And finally, I walked through the path again:
“Here’s how those steps transpired:
- The Republicans refused to allow any hearings for Obama judicial nominees. The Dems were livid.
- The Dems responded by eliminating the filibuster for lower court nominees, allowing them to completely cut-out the Republicans in the process. The Republicans were livid.
- The Republicans gained control of the Senate and refused to consider Obama’s nomination for the vacated Scalia seat. The Dems were livid.
- The Republicans, instead of restoring the filibuster to it’s prior function, took it a step further and eliminated the filibuster for Supreme Court nominees (aka The Nuclear Option). This allowed them to cut-out the Dems completely for Trump’s nominee. The Dems were livid.
- The next step will be to eliminate the filibuster for all legislation. Trump has ignorantly and shortsightedly been pushing the Republicans hard to do just that.
- Once the filibuster is gone, simple majorities can pass any legislation, including changing the legislation that currently sets the Supreme Court at nine justices. In other words, once that filibuster is removed, if the Dems take Congress and the Presidency, they can add Supreme Court Justices at will, with no ability for the Republicans to block it.”
That brings us to today.
If the Republicans proceed and succeed in appointing the new Justice before the election or, even worse, after the election if the Democrats win it all, the Democrats would then believe that they had been cheated out of 3 Supreme Court appointments and a Presidential election tainted by interference by the Russians in Trump’s favor. They will most definitely feel justified in taking the next actions, rightly or wrongly.
But when they do that, it very well could be the final nail in the coffin of our constitutional republic. That final blow to the politicization of the Judiciary would result in a complete breakdown of our system of separation of power and checks and balances…this would be what the founders warned us about as the tyranny of the majority.
“When you have the Senate, when you have the votes, you can sort of do what you want as long as you have it,” Trump said in an interview with “Fox & Friends.”
Trump demonstrates the very essence of the tyranny of majority. Many guardrails were put in place to prevent this. One of those was the filibuster rule in the Senate. This was to ensure a very deliberative, careful process in making decisions to ensure that they were not overly partisan and such things as the confirmation of judicial nominees were not overly politicized. These protections were put in place for very good reason…wise people understood that without them, it would lead to mutually assured destruction.
Once we get to that level of system failure, the problems will compound and become worse and worse as each party regains power and takes the next step to “remedy” the wrongs that were done to them and they will seek vengeance.
How can anyone in their right mind think this can possibly end well for our children and theirs?
Mutually assured destruction. And the nuclear devices have already been detonated…we’re now in the phase of increasingly larger bombs that will inevitably destroy us.