You are reading this essay, dear reader, shortly after the presidential election. Because of problems concerning who gets to vote and how they get to vote, the results of the election may not be known yet. And there is the possibility that our accidental president will challenge the results if they go against him.
This essay does not address that scenario, however. That scenario will be the subject of a future essay. What is to be addressed here is the political blitzkrieg which occurred before the election, such as the elevation of appellate court judge Amy Coney Barrett to the U.S. Supreme Court.
With the passing of Justice Ruth Bader Ginsburg, the High Court saw its third vacancy during the current administration. Donald J. Trump could scarcely contain his joy at the prospect of nominating another conservative jurist and turning the Court solidly red. He wasted no time in finding a likely candidate: Judge Barrett, whom he had nominated to the Seventh Circuit Court of Appeals not three years prior. She has set a record for the fastest rise in the Federal judicial system.
Senate majority leader Mitch McConnell did not let the grass grow under his feet either. He scheduled a hearing for the Senate Judiciary Committee a week after Trump’s announcement. The committee held four days of hearings before taking a vote, and, of course, the vote was pre-ordained.
McConnell, who broke his own rule for confirming a nominee during a presidential election year, thus adding to his well-deserved reputation as the biggest hypocrite in the annals of American politics, quickly scheduled a single day for a debate on the Senate floor and the actual vote on the following day. The vote was never in doubt, close, but never in doubt. Judge Amy became Justice Amy, and just in time for two major cases before the High Court, one dealing with the election, the other with the future of the Affordable Care Act.
Right now, she is a wild-card. Despite the bear-baiting by the Democrats on the Judiciary Committee, not their finest hour, folks! She steadfastly refused to commit herself to a one-size-fits-all approach to any case requiring her opinion; instead, she said she would look at the merits of each case before making a decision, based upon the language of the U.S. Constitution. It is as it should be. It remains to be seen, of course, if she will be truly an independent jurist. The Chas has a feeling she will surprise many a so-called conservative.
Concerning the make-up of the Supreme Court, candidate Joe Biden had toyed with the idea of expanding the membership in order to achieve some “balance.” His toying was greeted by howls of protest by a gaggle of hypocritical GOP lawmakers and pundits. President Franklin D. Roosevelt had the same idea in 1937 when the Republican Congress refused to pass everything on his legislative agenda. Howls ensued there, too, and the proposal was roundly defeated. The fact of the matter is that the Constitution does not specify the number of justices on the High Court; that power belongs to the Congress, not to the president.
Historically, that number has shifted several times, sometimes for political reasons. The Judiciary Act of 1789, which created the Supreme Court, set the number at six, two for each region of the nascent United States (a Chief Justice and five Associate Justices). The Act of 1801 reduced that number to five because president John Adams wanted to deny his successor, Thomas Jefferson the opportunity of nominating a justice. The Act was repealed later that year. In 1837, the number was increased to nine due to the expansion of the United States. A 10th was added in 1861. In 1866, the membership was reduced to seven because the Republican Congress did not want president Andrew Johnson making any nominations. Finally, in 1869, the number was increased to the present-day nine justices.
BTW, Americans have been subjected to a gross misinterpretation of the Constitution concerning a justice’s term of office, i.e. that (s)he is appointed for life. Read the language, dear reader, in Article Three, Section One: “The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior (emphasis added). Good behavior may last a lifetime, or it may not; lifetime is not automatic. Only one Supreme Court justice has ever been impeached, Samuel Chase in 1804, but he was acquitted the following year. One appellate court judge, Robert W. Archbald, was impeached in 1912 and was convicted the following year. Thirteen district court judges have been impeached, and eight were convicted (three others resigned before they came to trial).
Enough nonsense about a “life term.”
Just a thought.