With the nomination of Brett Kavanaugh to replace the retiring Anthony Kennedy, Leftists have been throwing out all sorts of arguments why we (meaning they) can’t allow this to happen. Don’t you wish you had a handy dandy guide to help you refute those arguments?
Well, I’m going to try to provide one. Granted, I try not to think like a Leftist for too long because it makes my head hurt and I might not come back, but for you, I’ll make an exception. Let’s take a look at some of the Left’s arguments (which I have put in bold to separate them from my responses) and some of my responses (which I have not put in bold to separate them from the Left’s arguments). Yes, I know that last one was redundant, but when dealing with Leftists, it’s best to make absolutely sure. Where applicable, I have tried to make it into a back-and-forth conversation, but if the Leftist jumps to a different argument than the order in which I have written responses, just jump to the appropriate response and go from there.
Ready? Here we go!
Donald Trump shouldn’t be allowed to nominate a Supreme Court Justice while he’s under investigation.
What investigation is that?
That he conspired with Russia to help him win the Presidency.
Oh, that investigation! Seems former FBI Director James Comey and special prosecutor Robert Mueller, both of whom you’ve lauded in the past, have both said Trump is not under investigation. In fact, of the indictments to date, none have been against Trump, nor have they been linked to Trump’s 2016 Presidential campaign. All the accusers have at this point is guilt by association, which doesn’t stand up to legal scrutiny.
But what about all of those connections between Trump and Russia? Surely they prove collusion!
Not quite. Much of what you’re focusing on occurred before Trump was President. It could be argued the terms of impeachment spelled out in the Constitution, along with Article 1 Sections 9 and 10 which prohibit actions that punish an individual retroactively (a little thing the kids call ex post facto), mean Trump’s alleged actions would not be legal grounds for impeachment. As a private citizen, which Trump was at the time of the alleged collusion, Trump could conduct business with anyone he chose, even the evil Russians (which people like former President Barack Obama defended against allegations they were bad folks). And, on top of all that, collusion isn’t expressly illegal. That’s where the bar of “high crimes and misdemeanors” comes into play. If no laws were broken, impeachment isn’t a good and true option.
So what? If Trump gets to pick the next Supreme Court Justice, he could be picking someone who would rule on any case involving him!
Strangely enough, you have half of a point here. Appointing a Supreme Court Justice means that Justice might have to hear cases involving the President who appointed him or her. That’s why it’s expected any judge with conflicts of interest recuse themselves from any case that they have a personal stake in the outcome.
See? You’ve just made my point for me!
I’m not finished. Just because you should recuse yourself doesn’t mean you will. In my lifetime, there have been cases where a Justice should have recused himself or herself and didn’t. Clarence Thomas should have recused himself during cases involving health insurance since his wife works in that industry. On the other side, Justices Kagan and Sotomayor should have recused themselves from any rulings on Obamacare because both had direct impacts on it. And let’s not forget Justice Ginsburg, who officiated a same-sex wedding before she ruled on a Supreme Court case involving same-sex marriages. If you’re afraid of a Justice being influenced to vote a certain way because of who appointed him or her, you’ve had plenty of opportunities to say something.
But Kennedy’s son was Trump’s banker!
So that means Trump could have put pressure on Kennedy to retire early! Doesn’t that trouble you?
The operative words are “could have.” Trump could have talked Kennedy into retiring, or Kennedy could have come to that conclusion on his own. Without plausible evidence to confirm the President pressured Kennedy into retiring, we have to give Trump the benefit of the doubt. Well, that and the fact further evidence shows Kennedy’s son did not do business with Trump directly. The bank he was working for at the time did. That’s like blaming Ford for having trouble with your Chevy Volt.
Let’s go back to the appointing of the Justice ruling on a case Trump’s involved in. How can you reconcile that?
Easy. Precedent states the President cannot be charged legally with a crime while in office. That leaves impeachment as the means to remove Trump, and of all the Supreme Court Justices that would be involved, it is only Chief Justice John Roberts who would be involved, since the Constitution states the Chief Justice presides over the Senate portion of impeachment. And since Roberts was appointed before Trump was even a nominee, there is no conflict.
What about Mitch McConnell denying a confirmation hearing for Merrick Garland? Shouldn’t we wait until the elections are over, as McConnell said in 2016?
There’s a big difference between a Presidential election and a mid-term election. In 2016, McConnell relied upon what is loosely called “the Biden Rule”, but one that is backed up by Senate history. Traditionally, no Supreme Court nominations are made in Presidential election years since there is a chance the incoming President would not get to choose a nominee, which undercuts the power of the Presidency as outlined in, surprise surprise, the Constitution.
This year, there is no Presidential election; only the election of House and Senate members. There is no affect on Presidential powers, so there is no reason to hold off on the process. Not to mention, there is a current Supreme Court Justice who was appointed in a mid-term election year. Elena Kagan was appointed in 2010…with support of Republicans. Not liking who is President is not an excuse to delay the process.
Okay, okay, but shouldn’t Merrick Garland get a hearing, given how Senate Republicans sat on his nomination?
I actually have no problem with this, mainly because it’s pretty much a guarantee Garland wouldn’t get out of the Senate Judiciary Committee.
But Garland never got a hearing! That’s a stolen Supreme Court seat!
In order for something to be stolen, it must first be owned. The Supreme Court is not owned by any one President or political party, so President Obama didn’t get an automatic appointment because he was President at the time the vacancy occurred. Thanks to a bit of Senate history, Supreme Court Justices aren’t nominated in Presidential election years. Only when that bit of history comes back to bite the Left in the ass does it become an issue.
To go even further into this, the Constitution states the Senate gives “advice and consent” for judicial nominees. Nowhere is there a requirement for any nominee to go through a confirmation hearing. Really, the hearing is for grandstanding politicians to look like they’re doing something when they’re acting like hams.
Well…okay, but what about Brett Kavanaugh? Don’t you right wingers want Roe v . Wade overturned?
First off, Kavanaugh said he considers Roe v. Wade to be settled law and would not consider overturning it. Even if he’s changed his mind, there would need to be a legal challenge to Roe that would need to get through multiple judicial layers before it would even reach the Supreme Court. Will that happen? We don’t know.
Even if Roe gets overturned, the decision to allow abortions would go back to the states. We can argue whether that’s good or bad, but it’s a discussion that should be welcomed by all parties involved. Until Roe comes back before the High Court, though, it’s still just theoretical.
But Kavanaugh is a practicing Catholic! Don’t they want abortion outlawed?
Nancy Pelosi is a practicing Catholic, and she doesn’t want abortion outlawed.
Kavanaugh’s faith plays no role in determine whether he’s fit for the Supreme Court. Remember, the Constitution states there is no religious test to serve, so he could be an atheist and still not be disqualified.
What about gay marriage, civil rights, and other important issues? Kavanaugh will set us back on those and a lot more!
Again, there has to be a legal challenge that makes its way through the courts before it even gets heard by the Supreme Court. And that process isn’t quick, kids. It might be years before such a challenge gets heard.
Didn’t Kavanaugh say a sitting President shouldn’t be indicted or tried?
So, why should he be a Supreme Court Justice if he feels that way? No President should be above the law.
Because in that same piece you’re quoting from, he goes on to say Congress should change the law. In other words, Kavanaugh feels the current system needs to be changed and wants the body charged with making laws to do it, just as the Constitution dictates.
You keep talking about the Constitution. That’s outdated and should be revamped to reflect current values.
The Founding Fathers already accounted for that. If you can get enough support for your ideas, you can call for a Convention of the States and have the Constitution changed. With today’s political climate, I wish you the best of luck.
Even if you don’t want to go through the trouble of amending the Constitution, it should be pointed out the Constitution has already been interpreted to address many of the issues you hold dear. You may not feel like it’s progressive or conservative enough, but the judicial branch can be persuaded. How far those interpretations deviate from the source material may be an issue, but to call the Constitution outdated is to ignore the framework it provides us to change with the times.
Well, the Constitution doesn’t say how many Supreme Court Justices there need to be, so we should add more Justices so there is a better balance of ideologies.
That is a good point, actually. However, that has the potential to backfire. Remember, when you allow one President to do something, future Presidents can pick up that permission and run with it. Want to see 25 Antonin Scalia-type judges sitting on the High Bench?
Well, maybe we should put term limits on Supreme Court Justices.
Although it might seem like a good idea to limit the terms of Justices, the reason Justices have lifetime appointments is to avoid political favoritism. And when we look at the current Supreme Court makeup, the Justices who lean Left put their ideology above the Constitution. The Justices who lean Right tend to do the opposite. Besides, if we put term limits on Justices, we might be looking at another Merrick Garland situation, especially if the terms are to be 19 years, as is what is being suggested. Then, we might be right back where we started from and nothing will be solved.
Stop talking to me you racist/sexist/homophobe/bigot/Trumpster/insult-du-joir!
And there we have it. Use this as a guide, and may the fates be ever in your favor!