Contributors

Monday, October 5, 2020

It takes more than the bare minimum.

On September 19, 2020, Andrew McCarthy wrote in "Replacing Justice Ginsburg: Politics, Not Precedent" at National Review Online the following.

It is ridiculous for leading senators, administration officials, influential partisans, and pundits to enunciate the high-minded principles and precedents that supposedly control the propriety and timing of a nomination.

In reality, there are only two rules, both set forth in the Constitution: A president, for as long as he or she is president, has the power to nominate a person to fill a Supreme Court seat; and that nominee can fill the seat only with the advice and consent of the Senate. That’s it. Everything else is posturing. Everything else is politics.

Of course, it is true that the Constitution does not require the president, or anyone else for that matter, to be courteous.  Nor does it require him to be persuasive, or industrious, or wise, or even well-intentioned.  Then again, the Constitution does not guarantee that the president's term will be successful or good for the country, nor that Republic will endure, nor that the endurance of the Republic would be a good thing that ought to be desired.  The Founding Fathers knew that it takes more than a bare minimum to give civilization, let alone democracy, a chance of success, but they also knew it was hopeless to enumerate in detail all that is necessary:  there is too much to say, for one thing, and it is unnecessary except for fools and scoundrels, who would at any rate dismiss it -- for instance, by saying it is mere posturing.

This is not about the nomination of Amy Coney Barrett to succeed Ruth Bader Ginsburg; I very much hope Judge Barrett is confirmed.  But for at least my whole life, presidents, along with "leading senators, administration officials, influential partisans, and pundits" have done their Machiavellian best to cast off all restraints to their power, ignoring law, tradition, ethics, and the Constitution when they could, and giving perverse interpretations to them when they could not completely ignore the restraints.  In the long run, the attitude expressed by Andrew McCarthy is a more serious problem than any one seat on the Supreme Court.

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