{"id":2039,"date":"2020-09-28T09:42:27","date_gmt":"2020-09-28T16:42:27","guid":{"rendered":"http:\/\/www.clarkjudge.org\/?p=2039"},"modified":"2020-09-28T09:48:05","modified_gmt":"2020-09-28T16:48:05","slug":"trumps-nomination-of-acb-honors-constitutional-norms-amgreatness-9-27-20","status":"publish","type":"post","link":"https:\/\/www.clarkjudge.org\/wordpress\/2020\/09\/28\/trumps-nomination-of-acb-honors-constitutional-norms-amgreatness-9-27-20\/","title":{"rendered":"Trump\u2019s Nomination of ACB Honors Constitutional Norms; Dems Dishonor Them | American Greatness | 9.27.20"},"content":{"rendered":"\n

Democrats and President Obama abandoned prudence as part of political persuasion in 2016 and so they failed to get their nominee confirmed. Now they are angry that Republicans and President Trump are using it effectively.<\/em><\/p>\n\n\n\n

To hear Democrats in Congress, the very nomination of Judge Amy Coney Barrett to the Supreme Court is illegitimate. Putting up a new member in an election year, they and their media pals tell us, violates every unwritten \u201cnorm\u201d of our system. They are wrong.<\/p>\n\n\n\n

The real norm is written in a history that every first grader should know\u2014but apparently not the likes of Senators Chuck Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.). The very first Supreme Court nomination during a competitive election year\u2014which was our fourth presidential election year, 1800\u2014came after<\/em> both the outgoing president and his party in the Senate had lost at the ballot box, but before<\/em> each had left office. It led to the installation of the most consequential chief justice in the nation\u2019s history, John Marshall.<\/p>\n\n\n\n

But such ancient history is no precedent at all, the Democrats insist, for, as they tell us, Republicans confirmed a better, more modern rule in 2016, when they refused to fill Justice Antonin Scalia\u2019s seat before that year\u2019s election. Maybe the Democrats and the media (to be fair, some Republicans, too) should think for more than a hot minute about the written<\/em> rules for nominating and confirming justices. The written rule tells a different story.<\/p>\n\n\n\n

What the Constitution Says<\/strong><\/p>\n\n\n\n

Now, we all know that, so far as this election season goes, the written law has been treated as simply pass\u00e9<\/em>. Take, for example, this rule from Article II, Section 1 of the Constitution. It requires only a second or two to read: \u201cThe Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.\u201d<\/p>\n\n\n\n

Already, by extending their deadlines for receiving and counting mail-in ballots, the Democrat governors of Pennsylvania, Michigan, Wisconsin, and North Carolina have tossed that rule aside, opening the coming election to an Illinois-1960 outcome. <\/p>\n\n\n\n

In 1960, Democratic Mayor Richard Daley withheld Chicago\u2019s vote count until returns from Republican downstate were in. Then, magically, he reported sufficient votes for John F. Kennedy to give Kennedy the state and, in that close year, the Electoral College and the presidency. <\/p>\n\n\n\n

Today, in those four pivotal states and likely others, the 2020 stage is set for another Daley-like outcome, with more time and more states in which to manufacture the so hotly desired result than Richard Daley in his most expansive dreams ever imagined possible.<\/p>\n\n\n\n

The written rule regarding selection of judges (Section 2 of Article II) takes even less reading time than the one about election days. The president, it says, \u201cshall nominate, and by and with the advice and consent of the Senate, shall appoint \u2026 judges of the Supreme Court . . . .\u201d<\/p>\n\n\n\n

Close study of constitutional language as originally understood is not a skill that Democratic officeholders, or their appointees to any level of the judiciary, or their pals in the media respect or cultivate. \u201cIf it feels good, do it\u201d is closer to their New Age mark. <\/p>\n\n\n\n

What Would Prudence Dictate?<\/strong><\/p>\n\n\n\n

But whether you are a Republican textualist or a Democratic abstract impressionist, the Constitution is truly living when it comes to intra-governmental interplay: How it works and what it means changes with the circumstances.<\/p>\n\n\n\n

So, what does \u201cadvice and consent\u201d mean?  More specifically, what should it have meant for President Obama in 2016 when he nominated Merrick Garland for the high court versus for President Trump this week when he decided on Judge Barrett?<\/p>\n\n\n\n

The distinction is prudence, a standard as ancient as politics itself. \u201c[O]ur choice of actions,\u201d Aristotle wrote, \u201cwill not be right without Prudence any more than without Moral Virtue, since, while Moral Virtue enables us to achieve the end, Prudence makes us adopt the right means to the end.\u201dabout:blank<\/p>\n\n\n\n

The authors of the Constitution understood this enduring \u201cnorm\u201d of political behavior. At the moment of declaring the country\u2019s independence, the founders cited it as their guide to action: \u201cPrudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.\u201d Can there be any doubt that when it came to requiring the president to seek the \u201cadvice and consent\u201d of the Senate, the founders meant he should do so as informed by prudence?<\/p>\n\n\n\n

The Lost Give-and-Take of Politics<\/strong><\/p>\n\n\n\n

So why in 2016 didn\u2019t President Obama see that just coming up with his high court candidate and throwing his name over the wall into Republican-controlled Senate chamber did not prudentially fit what the Constitution meant by \u201cadvice and consent\u201d? <\/p>\n\n\n\n

In that divided circumstance, \u201cthe right means to the end\u201d meant sitting down with the Senate leader (that would have been the Republican leader from Kentucky, Mitch McConnell) and developing a list acceptable to both of them. Was Senator McConnell unmovable? How about going to senators like Susan Collins (R-Maine) and Lamar Alexander (R-Tenn.) and determining candidates that would split off enough Republican votes to get around Senator McConnell?<\/p>\n\n\n\n

But this kind of prudence\u2014which is the normal give and take of politics\u2014was never in the Obama skillset. After all, this was the president whose idea of an olive branch in budget negotiations was to invite then-Representative Paul Ryan (R-Wis.) to a speech he was giving at George Washington University, reserve for Ryan a front-row seat, and then use the speech as an occasion to denounce Ryan\u2019s budget proposals as immoral.<\/p>\n\n\n\n

In contrast, President Trump has taken a prudent look at today\u2019s Senate. The chamber\u2019s minority has spent four years in a scorched earth campaign to destroy his presidency and failed. In what universe would giving their advice two seconds of consideration fit within the constitutional presumption of prudence?<\/p>\n\n\n\n

Senate Democrats want norms? How about the norms of courtesy and respect during the Senate hearings to come? Or will we find that, like riots in cities all over the nation, the kind of hearings they gave Robert Bork, Clarence Thomas, and Brett Kavanaugh remain their idea of our system\u2019s new norms as the Democrats have so bizarrely determined them to be?<\/p>\n","protected":false},"excerpt":{"rendered":"

To hear Democrats in Congress, the very nomination of Judge Amy Coney Barrett to the Supreme Court is illegitimate. Putting up a new member in an election year, they and their media pals tell us, violates every unwritten \u201cnorm\u201d of our system. They are wrong.<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[235,6],"tags":[45,44,65,229],"class_list":["post-2039","post","type-post","status-publish","format-standard","hentry","category-campaign-2020","category-political-commentary-general","tag-democrats","tag-republicans","tag-supreme-court","tag-trump"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts\/2039","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/comments?post=2039"}],"version-history":[{"count":3,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts\/2039\/revisions"}],"predecessor-version":[{"id":2043,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts\/2039\/revisions\/2043"}],"wp:attachment":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/media?parent=2039"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/categories?post=2039"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/tags?post=2039"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}