The US Supreme Court: The Fix is In. Now what?

The current Supreme Court consists of 9 members.

Trump’s appointments now make up 33% of the court.

ALL of these appointments happened under suspicious circumstances that will be outlined below.

It is also important to remember that, while Trump won the electoral vote, he only received only 46% of the popular vote which was hardly a mandate, and SC Justices were all confirmed by Senators representing less than half this country (about 46% of the population). While all this is legit and Constitutional, there are some extra-Constitutional circumstances surrounding each one.

The Justices:

Neil Gorsuch replaced Scalia. Scalia passed away suddenly on February 13, 2016, while Obama was President. Mitch McConnell would not even let Obama’s nominee come up for a vote. He refused to do so because it was an election year and the voters should be able to decide who would fill the position. He said: “the decision the Senate made weeks ago remains about a principle, not a person." (A quote that would not hold up well.)

Time to vet was not an issue. The election was 270 days away.

Gorsuch was confirmed on 04/07/2017, only 78 days after Trump took office — at a time when the Senate was busier as it was also trying to confirm his cabinet picks.

Significantly this was also 420 days after Scalia died.

In this case, a President who won 46% of the popular vote nominated him and Senators representing 46% of the population confirmed him with only three democrats giving him the nod. (Heidi Heitman(ND), Joe Manchin (WV) and Joe Donner (IN).)

Obama, by comparison, won the popular vote with 51% of the population voting for him. We won by about 5,000,000 votes. Granted we did not know how the 2016 election would turn out BUT McConnell denied Obama the ability to nominate the Supreme Court Justice created the circumstances by which a less popular President could make the appointment. Additionally, there was no precedent for his actions. This action was outside the Constitution — and was purely a partisan play.

Next came Brett Kavanaugh who replaced the Kennedy. Kenney rather suddenly resigned and, while this might normally not be controversial, Kennedy’s son was known by Trump and he worked for the real estate division of Deutsch Bank when Trump was getting many loans. It is notable that loans were made to the Trumps through him when others would not and that the banks for fined for Russian money laundering. (There is a lot to this and it is outside the scope of this blog.)

While nothing has been proven and he was 82 when he resigned, it just seemed a bit odd and sudden.

He was also often a swing vote and allowing Trump to replace him, the court would swing solidly to the right.

After a tumultuous confirmation hearing, Kavanaugh was confirmed on October 8, 2018–128 days after Kennedy announced he was leaving and 93 days after his departure. (Note: There are still questions surrounding the vetting process so stay tuned.)

While no wrongdoing has been proven around any of this, the circumstances suggest that corrupt influences could have been at work which is not something you want to be associated with the Supreme Court.

Amy Conney Barrett replaced Ruth Bader Ginsberg who died on 9–18–2020 when she was still on the court. Even though McConnell forced Obama to wait because it was an election year, they managed to nominate and confirm Barrett in 39 days.

This nomination, in light of McConnell’s previous position, is extremely hard to take. 270 days before the election was too close but 47 days was ok. At that point, McConnell's reasons switched to doing it because he can not be stopped.

In all these cases, the people were put on the court by people representing less than half of the population of the country. They also did not choose moderates as a nod to the Democrats and at least one of these nominations should have been made by the opposing party.

Summary:

At this point, at least one justice has been unfairly placed on the bench. Either Gorsuch or Barrett. The reasoning used to stop one was completely contradicted later.

There are issues around Kavanaugh and Kennedy but we can set those aside for now.

The court is now skewed: 6 conservative appointments to 3 liberal appointments. Three of the 6 were installed by a President who did not win the popular vote and Senate that represented less than half the country. And at least 1 of the 3 by all measures of fairness should not be there (Gorsuch or Barrett). It could be argued that both Gorsuch and Barrett should not have been conservative appointments because the Barrett confirmation was indeed rushed and arguably she was not vetted appropriately.

The question is then: “what to do?”.

Fairness dictates that at a minimum one conservative justice should not be there and that the court consist of 5 conservative appointments to 4 liberal appointments (at a minimum).

What to do?

There are several options but, and this may be unpopular, but allowing this to stand is not an option.

It is like allowing a theft to keep the goods he stole and then acting as nothing happened. And, while I get that doing anything to balance the scales can draw criticism, it is important that this be done for equity and fairness.

The GOP has not been acting in goodwill and having a Supreme Court tilted wildly to the extreme right (they did not nominate moderates) puts it at direct odds with the rest of the country.

This could be corrected if:

1. A GOP justice steps down allowing Biden to fill it. The justice would have to do it out of a sense of equity and fairness and can not be forced. And frankly, the partisan nature of these judges leads to believe that ice is more likely to survive in hell than this is to happen.
2. There has also been discussion about adding justices. To avoid gridlock, it would have to be done in 2’s. If two more were added, the court would be 11 members. It is now 6 to 3. Adding two more members would make it 6 to 5 — which does seem closer to where it should be — under the most forgiving of circumstances. It is a slight conservative advantage. Doing this would likely come at a heavy cost to the left because no one would be satisfied but it seems like it would be the fairest — and hopefully, a few fair-minded Republicans would see their way to support it. Adding more could invoke more outrage on the right although it would satisfy those on the left. The left should consider adding more but discuss the possibility of just adding two with members of the GOP who may be open to listening and who wish to avoid a bigger fight — after all the Supreme Court would still tilt to the right.
3. And then, there should be some rules established around nominating a Supreme Court Justice when it comes to timing so that never again can the leader of the majority party hold up a nominee and do the things the McConnell did to undermine the fairness of the process and the integrity of the Senate and Supreme Court. The bill should be called the McConnell Bill in memory of him and the fact that he and he alone made these changes necessary. That these actions needed to be taken are a black mark in the history of the country but these actions are not themselves the black mark — McConnell did that. They are an effort to rectify and injustice that he and he alone created.

And to just move on is not an option.