The Universal Notebook: How to fix the Supreme Court

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Remember Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit? He should be a member of the U.S. Supreme Court today, but he’s not.

President Barack Obama nominated him with 11 months left in his second term in office, but Republican Senate Majority Leader Mitch McConnell of Kentucky refused to hold confirmation hearings or a vote on Garland’s nomination.

Republicans, masters of dirty tricks that they are, insisted at the time, “Let the people decide,” as in let the next president nominate a justice. Well, with less than two months until the Nov. 3 election, McConnell and Republicans in the Senate will no doubt do everything they possibly can to replace Justice Ruth Bader Ginsberg with a conservative lickspit of President Donald Trump’s choosing. You can’t be a hypocrite, after all, if you don’t believe anything. 

The Notorious RBG was a tiny woman and a legal giant, a champion of women’s rights, and a huge figure in the fight for women’s equality. One could only wish that she had stepped down while Obama could have nominated her replacement, but then there is no guarantee Republicans in Congress would have allowed that no matter the timing. 

Ginsburg, bless her soul, tried to hang on until Trump was out of office and expressed the wish that her replacement be nominated by the next president, but Republicans no longer observe the rule of law. In 1993, Ginsburg was confirmed by a vote of 96-3. Were she nominated today, she’d be lucky to get three Republican votes.

Every bone of my body, therefore, screams for Democrats in Congress to do everything in their power, legal or otherwise, to keep Trump from making a third disastrous appointment to the Supreme Court. But McConnell was ethically wrong to deny hearings to Merrick Garland; his underhanded power grab should not be allowed to set precedent.

To her credit, in 2016, Maine U.S. Sen. Susan Collins, who had not yet become subservient to Trump, broke with her party and argued for holding hearings on Garland’s nomination. She now says the winner of the November election should get to nominate Ginsburg’s successor, a move obviously meant to appease moderates unhappy with her vote to confirm Justice Brett Kavanaugh.

Conventional wisdom has it that Trump is likely to nominate Amy Coney Barrett to replace Ruth Bader Ginsburg. Barrett, whom Trump placed on the federal appeals court in 2017, is the anti-RBG. A devout Catholic, ACB is anti-abortion and opposed to covering birth control under the Affordable Care Act. She is affiliated with People of Praise, a fundamentalist “Christian” group that believes in divine healing, speaking in tongues, and a man’s authority over his wife. A person who does not believe that all men and women are created equal is not fit to serve on the Supreme Court. 

To balance the lopsided 6-3 rightward tilt of the court created by Trump, a Democrat-controlled Congress will only need to add two or three members to the number of Supreme Court justices, a measure well within their power and done several times in American history. There were originally six justices and the number at various times has been five, seven, nine and 10. Adjusting the number and enacting term limits would go a long way toward fixing our highly partisan SCOTUS.

Rejecting whoever Trump nominates would also help in the short term.

Edgar Allen Beem has been writing The Universal Notebook weekly since 2003, first for The Forecaster and now for the Phoenix, where he also writes the monthly Art Seen feature.