How Do We Preserve Our System of Separation of Power and Checks and Balances on Government?

The liberty principle for this Freedom Friday is the need for judges to maintain neutrality when making judgments. The Supreme Court leaned left for many years, and the Left liked the court’s decisions. However, the Left is quite upset with the right-leaning justices who make their decisions on their interpretation of the Constitution instead of politics. As a result, the Left has targeted the Supreme Court to undermine its effectiveness. John G. Malcolm discussed the situation in his article in The Daily Signal. 

In recent years, the Supreme Court has been the target of a relentless and strategic campaign aimed at undermining its credibility and impartiality.

Left-wing publications such as ProPublica, Slate, and The Guardian have led an orchestrated assault against the high court’s Republican-appointed justices, and their message has been amplified by Senate Democrats.

Their motive? To cause the American people to question the legitimacy of some of the Supreme Court’s majority opinions that the Left does not like.

These publications are intimating, but not actually arguing, that the accused justices’ actions violated then-existing judicial ethics rules – they didn’t. Instead, the media outlets aim to generate skepticism about the justices’ ethics, integrity, and impartiality.

So far, these attacks on the high court’s conservative justices aren’t as dramatic as the demonstrations outside their homes – which have diminished but are still continuing – or as dangerous as the assassination attempt against one, Justice Brett Kavanaugh, in early June 2022. But the assaults on the six conservative justices – and by extension, the legitimacy of the entire nine-member court – have been equally fierce.

Malcolm discussed several instances where Senate Democrats outright threatened the justices or Democrats discussed ways for the Left to take over the Supreme Court.

·         2019: “Sen. Sheldon Whitehouse (D-R.I.) and five other Senate Democrats filed an amicus brief in a Second Amendment case arguing that the Supreme Court is “not well” and that if it didn’t rule the way the Democrats wanted, the court might have to be “restructured.”

·         A little later while an abortion case was being argued before the Supreme Court, Senate Majority Leader Chuck Schumer (D-N.Y.) “stood on the steps of the Supreme Court” and warned that “Kavanaugh and Justice Neil Gorsuch had ‘released the whirlwind’ … and would ‘pay the price’ if they continued making ‘awful decisions.’”

·         Shortly thereafter, Democrats began discussions of “packing” the Supreme Court to add enough liberal justices to become the majority on the court. President Joe Biden declared that the Supreme Court was “out of whack” and “convened a commission to study this and other potential reforms to the court. Many on the Left were upset when the commission didn’t offer a full-throated endorsement of their court-packing proposal.”

·         “Democrats in Congress are seeking to impose a new code of conduct on the justices that – if enacted despite a lack of constitutional authority to do so – would lead to an unrelenting stream of ethics charges and recusal motions.” As usual, Left-wing media outlets are targeting conservative justices and ignoring several transgressions of liberal ones.

·         “Some liberal law professors have gone so far as to state that the best way to address their grievances is to urge Biden and other fellow travelers to simply ignore the Supreme Court.”

Malcolm noted that “nobody has credibly claimed that any actions taken by Republican-appointed justices violated any disclosure rules (which were recently amended) that existed at the time.” However, liberals are convinced that the “situations likely affected conservative justices’ impartiality.”

The liberals’ problem is that the opinions of the Supreme Court that “align with their policy preferences” are fewer. Therefore, liberals have chosen to question the legitimacy of the court and to smear the justices. The result is that the approval rating for the court in the latest Gallup poll stands “at 40% -- tied for its lowest rating since Gallup began conducting these polls in 2000 – and its disapproval rating is at 58%, an all-time high.”

Malcolm concluded his article by declaring that the one-sided attacks on Republican appointees to the Supreme Court, and the unending assaults on the legitimacy of the court itself, have to stop” if “our system of separation of powers and checks and balances” is to be preserved.

What Does the Constitution Say About Replacing Justice Ginsburg?

             The topic of discussion for this Constitution Monday is the subject that is on many minds and tongues since Friday. Associate Justice Ruth Bader Ginsburg died on Friday at the age of 87 from complications of pancreatic cancer. She was appointed to the Supreme Court in 1993 by President Bill Clinton for 27 years of service. She “was known for her soft-spoken demeanor that masked an analytical mind, a deep concern for the rights of every American and a commitment to upholding the Constitution.” 

            The death of Justice Ginsburg means that a new justice must be appointed to take her place. The debate surrounds the timing of the new appointment. Article II Section 2 Clause 2 of the Constitution of the United States says: “… He [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court….” In this clause – known as the Appointments Clause – the Constitution empowers the President to nominate and the Senate to confirm (advice and consent) to appoint justices to the Supreme Court. The Appointments Clause does not say anything about timing for the President to nominate or the Senate to confirm. It simply outlines their responsibilities to do so.

            The confirmation hearings for Associate Justice Brett Kavanaugh were wild as Democrats sought to keep him from being confirmed. I expect that the confirmation for the next justice will be even more ferocious. Democrats have been encouraging and/or participating in violence for the past four years since Donald Trump won the 2016 presidential election. They have pulled dirty tricks out of their bag one right after another with hopes of getting Trump out of office.

            Democrats want the seat to remain open until after the 2020 election. Of course, they do! However, they would not leave the seat open if they had control of the White House and the Senate! They – and some Republicans – are loudly calling hypocrisy for Senate Leader Mitch McConnell’s pledge to vote on a nominee when Trump sends a name to them. However, he did not allow the Senate to vote on a nomination made by President Barack Obama in the months leading up to the 2016 presidential election.

            Here is the reason that McConnell will be following a different path this time: In 2016, the White House was held by a Democrat, and the Senate was held by Republicans. There was absolutely no reason why a Republican-controlled Senate should confirm a liberal justice. In 2020, both the White House and the Senate are controlled by Republicans. Republicans have the power and the opportunity to confirm a conservative, constitutional justice to the Supreme Court, and they should move forward in fulfilling their duty to do so. The circumstances are different, but the Constitution and history say that Trump can nominate, and the Senate can confirm a new justice to replace Justice Ginsburg.

            There is no legal reason why either Trump or the Senate should hesitate to perform their constitutional duty to replace Justice Ginsburg. However, the Democrats and their far-left supporters will make everyone miserable during the process. I suggest that you buckle your seat beat and hold onto your hat because it is going to be a wild ride!

Supreme Court Justices

                The topic of discussion for this Constitution Monday concerns the Supreme Court. The Constitution states,    “The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…” (Article II, Section 2, Clause 2).

                The President “shall nominate” and “appoint” with the Consent” of the Senate. The importance of nominating and appointing new Justices cannot be overstated. If Hillary Clinton becomes the next President of the United States, she will nominate liberal people to become Justices. Donald Trump already has a list of 21 individuals that he has promised to choose from if he becomes President.

                John G. Malcolm wrote an article titled “A Conservative Take on Trump’s New Supreme Court Nominee List” for The Daily Signal. He writes, “As was the case with his original list [of 11 people], the men and women who have been added appear to be eminently qualified to sit on the high court. Nine of these individuals … clerked for Supreme Court justices, and several others held distinguished clerkships as well.

                “Many of them have taught or continue to teach at prestigious law schools, [one] is a sitting U.S. senator, and [one] served four terms in the House of Representatives. While several served as state or federal prosecutors, at least one … served as a federal public defender.

                “One thing that is particularly striking about the Trump list is the geographic diversity and non-federal judicial experience of many of the identified individuals. As Scalia noted in his dissenting opinion in the same-sex marriage case, the current composition of the Supreme Court hardly reflects `a cross-section of America.’ …

                “Nine of the people on the Trump list, on the other hand, are sitting state supreme court justices from eight different states across the country. Two of them … sat as state court judges before becoming federal judges…. [One sits on the Court of Appeals for the Armed Forces, which would likely give her a different perspective from most other federal judges.

                “Individuals with experience on state courts are less likely to have a jaundiced view of the competency of state court judges, who are sometimes treated like the figurative poor step-child by the federal judiciary….”

                Should you still be undecided how you will vote in November, please take some time to read Malcolm’s entire article. He gives some very good reasons why we need to keep Hillary Clinton out of the White House.