This report from the Washington Post caused me to smile. According to the Post, Sen. Chuck Schumer called President Trump and urged him to nominate Judge Merrick Garland to the Supreme Court.
Schumer was not daunted by the fact that Garland’s name does not appear on the list of 25 from which Trump has promised his nominee will come. The absence wasn’t exactly an oversight. Garland is a liberal whom Republicans refused to support when President Obama nominated him.
I would love to have heard Schumer’s arguments in favor of nominating Garland. “Mr. President, this is your chance to do something truly historic, to build bridges, to break the cycle of partisanship that’s tearing the country apart.” Blah, blah, blah.
Does Schumer have anything to gain from insulting Trump’s intelligence? No. But he probably doesn’t have much to lose either.
Speaking of insults to intelligence, have you heard the one about how presidents should fill Supreme Court vacancies with jurists whose judicial philosophy/ideology are roughly akin to that of the Justices they are replacing? That’s become a Democratic talking point since Justice Kennedy announced he was stepping down.
What rubbish. Never in American history has this been the practice. Presidents nominate (or try to) jurists whose judicial philosophy/ideology is roughly akin to their own. That’s how it should be in a democracy (more on this below).
When Justice Scalia, a conservative, stepped down, then president Obama nominated Judge Garland, a liberal to fill the vacancy. He did so knowing, indeed intending, that this would tip the balance of the Court decisively in favor of liberals. So don’t tell me that the current vacancy is a special case because it may tip the Court’s balance decisively in favor of conservatives.
Replacing Kennedy, a centrist who leaned right, with an out-and-out conservative is less dramatic than replacing Scalia with Garland would have been. But it doesn’t matter. In a democracy, presidents should try to swing the Court in a direction favorable to their views.
Speaking of which, a quick word about Poland. The left, both in America and Europe, is up-in-arms about the democratically elected Polish government’s efforts to reform the country’s high court. The Washington Post, for example, is pushing this story hard. And the leftists who run the EU are threatening Poland with retribution.
But the reforms are overdue. The current arrangement was the result of a deal between Solidarity and the Communists. It permits an elite judicial council to pick Supreme Court judges.
Obviously, this served the interests of the Communists, who selected the last judicial council in 1989, and whose influence on it persists. However, it doesn’t serve the interest of democracy. To the contrary, it creates a judicial oligarchy.
I know of no other democratic country where judges have this much control over who sits on the Supreme Court. Even in the “exigent circumstances” of Justice Kennedy’s retirement, I haven’t heard any Democrat suggest that a panel of judges should name his successor.
There’s a common thread, though, running through the judicial wars in American and Poland. In both cases, the left hopes to avoid the consequences of losing elections (in Poland, massively) by making bad arguments about the judiciary.