First, the Supreme Court is out of whack. Our founders never conceived that the Supreme Court would be become our nation’s law-making body. This would be a good time to assess what the Supreme Court’s original purposes was and what it has become.
Second, a Supreme Court decision has become the equivalent of an Amendment to the Constitution. Trying to get an Amendment to the Constitution passed is an arduous task requiring three-fourths of the States (38 of 50 States) to ratify it. The process was designed to be difficult and decentralized.
Third, Congress has given up its legislative obligations and has allowed the Supreme Court to do its job. It makes it easier for them to get re-elected not having to deal with the hard cases. They can always claim that they never permitted abortion; it was seven Supreme Court Justices that made it legal for women to kill their unborn children. While they tell us they are “personally opposed” to abortion, there isn’t much they can do about it (except fund it) because it’s now the law of the land.
Fourth, the Supreme Court is not responsible to the people. Once in office, a justice is there for life.
Consider this statement from Democrat Senator Patrick Leahy. See if you can spot the ridiculousness of his comment in response to news reports that Republicans may postpone their role to “advise and consent” on Supreme Court nominations until the next President is sword in:
“The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons. It is only February. The president and the Senate should get to work without delay to nominate, consider and confirm the next justice to serve on the Supreme Court.”
Supreme Court decisions subvert the democratic process by nullifying state constitutional provisions put in place by elected state government officials. It did this with Roe v. Wade (1972) on abortion and Obergefell v. Hodges (2015) on same-sex marriage. The will of seven and five unelected Supreme Court justices is not democracy.
Fifth, there is a two-part function to the process. At the present time, Republicans are in control of the Senate (I know that’s hard to believe given the way the GOP has been governing as the majority party) and are by definition an equal branch of government and are duty bound to stop any person who does not follow the Constitution.
Sixth, the Democrats know how to fight; Republicans often give up without a fight. In 2006, then Senator Obama joined 24 other Democrat Senators and told George Stephanopoulos on ABC News This Week that he would be supporting the filibuster of the nomination of Judge Samuel Alito because he “is somebody who is contrary to core American values, not just liberal values, you know. When you look at his decisions in particular during times of war, we need a court that is independent and is going to provide some check on the executive branch, and he has not shown himself willing to do that repeatedly.”
There is ample evidence that President Obama has been subverting the Constitution through Executive Orders. He has stated that if he had the power he would make even more radical changes to the United States. Another appointee (he’s already appointed two Justices) would give his agenda long-term legal permanency.
I’m not optimistic. I believe the Republican leadership will cave. Obama will send up a “moderate,” that is, a liberal who does not have much of legal paper trail. This person will have some politically correct ethnic resume that will be played for all its theatrical worth. Any Republican who does not approve this person will be labeled a bigot, racist, sexist, xenophobe, or whatever.
That’s the way the game is played, and as usual, the Republicans will be sitting on the bench wondering how they lost another game.