Silly Senate Dance

The Silly Dance In The Senate

By

Leonard Zwelling

It does not state anywhere in the Constitution that the Senate has to hold hearings on presidential nominees to the federal judiciary. Rather it is with the Senate’s “advice and consent” that these presidential appointments take effect. It is the Senate that has decided to hold hearings on nominees to the executive and judicial branches and take a vote on confirmation.

In the past, the filibuster was in effect necessitating 60 votes to secure any appointment, as for example, to the Supreme Court. Thus, until recently, it was virtually impossible for a nominee to get through to the Court without some support from the party opposite to that of the president making the nomination. But Mitch McConnell and Harry Reid did away with the filibuster for these appointments so now we really do have Republican judges and Democratic ones. That also means that any nominee from a president whose party controls the Senate, is almost guaranteed confirmation if he or she doesn’t upset the base.

Thus, the Amy Coney Barrett dog and pony show.

The judge will not own up to anything or render an opinion on anything from Roe v. Wade to the ACA because she will not give the Democrats any excuse to be happy with her or any Republicans to disavow her. She is also being rushed through so that she can hear the November 10 arguments on outlawing the ACA and participate in any Supreme Court sessions that would affect the outcome of the election. Donald Trump wouldn’t have it any other way. Democrats are foaming at the mouth in anger because when it was their turn to nominate someone in 2016 the Republican-controlled Senate blocked the hearings for Obama appointee Merrick Garland and wouldn’t even interview him in the hopes that the Democrats would lose the presidential election. And they did and the GOP won that round (Gorsuch), the next round (Kavanaugh), and now this one, too. And there is nothing that the Democrats can do to stop it now that the filibuster is gone. Tough toenails, Democrats.

So, rather than have all the Democrats complain about their losing hand and the fact that Mr. Trump may well have made a clever chess move to upend the ACA (this is actually doubtful. The case in November hinges on severability now that the individual mandate in the ACA has been thrown out. In other words, the GOP state attorneys general are saying if one part of the law goes down, it all has to. I think this will go 9-0 against the GOP).

As far as abortion rights are concerned, it is my understanding that the Roe decision hinges on the right to privacy that derives from the 1965 Griswold decision that legalized birth control within a marriage. Privacy is not a right guaranteed in the Constitution, but so much of our rights derive from that presumption that it may be very hard to overturn Roe in its entirety although you could see a way that third trimester abortion might be outlawed. I’m still with Bill Clinton on abortion—safe, legal and rare, but I really cannot see Roe being overturned even if Judge Barrett is confirmed.

If Congress really wanted to do something constructive, it would mandate that Supreme Court nominees need 75 Senate votes for confirmation thus guaranteeing the best qualified, least political justices. Alas, this will never happen. That doesn’t make it less of a good idea.

Since the Bork hearing where nominee Robert Bork was honest about his conservative views and it cost him a seat on the Court, nominees have been evasive knowing that being non-committal was a good way to make it to the Promised Land on the east side of the Capitol. Let’s get real. As long as the Senate is controlled by the party of the nominating president, we can forego the hearing and take the vote in the whole Senate—all that the Constitution requires. If a GOP president is working with a Democratic Senate, that president will only pick a truly excellent candidate and one who is not particularly political. For now, spare us the sideshow. Judge Barrett will make it on the Court. It is only then that we will see what she really thinks about any of the issues—Roe, the ACA or any others.

What has so struck me during these current hearings, is the lack of candor on the part of the nominee and the show business instincts of the Senators. Do we really need this when these same Senators cannot even agree on a covid aid package? Supposedly we voters can recall some of these Senators in two weeks. We ought to, but I bet it will only be a few who do not win re-election. One can always hope, but as long as we have to put up with charades like this hearing, the American people will have less and less faith in their government.