When President Trump announced his intent to nominate a new Supreme Court justice, Joe Biden declared, “The last thing we need is to add a constitutional crisis that plunges us deeper into the abyss, deeper into the darkness.” But the death of Justice Ginsburg and Trump's nomination of Amy Coney Barrett creates no “constitutional crisis.” This is one of the most misused word pairings of our hyperventilating age. The Constitution is clear. Article II, section 2 states that 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.”
The president nominates and the Senate either consents or it does not. Read the entire Constitution and you will find that there is no limitation on this process linked to the final year of a presidential term.
Nor does history provide a clear norm against this practice, as Dan McLaughlin helpfully outlined at National Review. McLaughlin notes that of the 29 Supreme Court vacancies that have opened in an election year or during the post-election “lame duck” period, our presidents have offered nominations every time. If the president’s party controlled the Senate, then the nomination generally succeeded. If not, it generally failed. Chief Justice Melville Fuller is the lone election-year nominee confirmed prior to the election in a split-power situation. That was 1888.
The custom of a political party using the power at hand in the fashion Trump envisions is almost as old as the republic itself. Even Chief Justice John Marshall (the man responsible more than any other for establishing “judicial review,” whereby the Court can declare statutes unconstitutional) achieved his position as the result of a nomination from the already-defeated President Adams and confirmation during the last gasps of a Federalist-controlled Senate. Perhaps this “use it before you lose it” mentality is not our nation’s most chivalrous norm, but it most assuredly is the norm.
Today, we have no “constitutional crisis.” We have no “normative crisis.” One could, however, make the case that we have a “credibility crisis” due to the statements made across the political spectrum in 2016 when President Obama nominated Merrick Garland after Justice Scalia’s death. The ubiquity of the hypocrisy—enveloping as it does everyone from Mitch McConnell to Chuck Schumer to Ruth Bader Ginsburg herself—either mitigates or magnifies the nature of the phenomenon depending on your perspective and level of cynicism.
McConnell would certainly have been better served today if he had consistently presented his argument for keeping the Garland nomination on ice with an emphasis on the party split between the White House and Senate. That split existed then and does not exist now. Such a “let the upcoming national election break the tie” approach would have been more consistent with history and would have lessened the flood of four-year-old sound bites circulating today.
All who are now having their words come back to haunt them would do well to read Marilyn Chandler McEntyre’s Caring for Words in a Culture of Lies. As she rightly notes, “Caring for language is a moral issue.” Sadly, in this regard, twenty-first-century American culture is in a state of steep moral decline.
Many in the media and on the left could take a step toward reform by abandoning use of the term “constitutional crisis” for issues where the Constitution itself is quite clear. This abuse of language is a derivative of the marring of the word “unconstitutional,” which has come to mean “really bad.” For example, were laws limiting marriage to one man and one woman unconstitutional? “Well, of course they were!” replies many a millennial without a second thought about exactly what part of the Constitution itself they might have violated. Today, “unconstitutional” is simply how many express their great personal displeasure, just as they declare anything they greatly desire a “constitutional right.”
Certainly, in the age of Trump, the political right is not immune from moral degradation in the realm of words. Asserting that one should take the president “seriously, not literally” is a deflection. Choosing to decry rather than amplify President Trump’s misuse of the term “fake news” would be a good start. Trump tortures the words “fake news” in a manner similar to the way the left abuses “unconstitutional.” “Fake news” for Trump is simply news that he does not like, such as recent reports about his tax returns. But “fake” is too important a word to be dragged down to the status of a mere self-serving preference.
Even what will arguably be President Trump’s most lasting legacy, his appointments to the Supreme Court, come with words left battered in the wake. With the seat of the late Justice Antonin Scalia looming over the election and the leading GOP candidate’s judicial philosophy still very much unknown, Trump released an unprecedented list of names in May 2016 that he said he would use “as a guide” to nominate Supreme Court justices. Assuming that the talented and impressive Judge Amy Coney Barrett is confirmed, none of Trump’s three first-term appointments to the Court will have come from that original ledger of eleven names. Only one, Justice Neil Gorsuch, was listed on the expanded second list in September 2016 that Trump described as “definitive.” Trump pledged to “choose only from it in picking future justices of the United States Supreme Court.”
This nomination is not a constitutional crisis. But one thing is clear: McEntyre’s call to be “good stewards of language” needs to be heard by those of all political persuasions and from the White House to Capitol Hill to the streets of the nation.
John Murdock is an attorney who writes from Boise, Idaho.
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