Kavanaugh isn’t the problem, Mitch McConnell’s usurpation of Presidential Appointment powers is- and what to do about it.
By Darrell Prince
The conversations about how to stop Kavanaugh, seem misguided, like arguing over colors of sweaters you will pack for the post apocalypse; perhaps time best spent attempting to prevent the apocalypse. Yes, Kavanaugh has a terribly troubling record, and like certain other Justices it seems like certain things- things which get Republicans elected- shaving off votes, deleting registered voters, tampering with vote values via apportionment and gerrymandering seem to be decided before they hear a case. They also all seem to be pretty obvious forms of altering the government structure and it’s resources to suit a favored minority, the opposite of any form of democracy, including the American republican form of democracy.
But the real story for the Supreme Court, the concept of Justice and the future of the United States, is the balance of power shift that was interrupted by a crime. The balance of power- swung to the liberal end of the court, was rudely, and illegally interrupted, and shifted, making every single case out of the Supreme Court in the last year suspect in the extreme. And, similar to how prior cases by police who are found to be planting evidence, have to be thrown out, so too, do most of the precedent overturning 5-4 decisions involving Gorsuch. The entire credibility of the system of Justice- frankly, already with some very real issues, is nearly entirely dissolved by not only the action, but the failure to examine a highly questionable action involving the make up one of the three branches of government
A crime was committed, when Mitch McConnell decided to block President Obama’s appointment of Merrick Garland to the Supreme Court of the United States of America, and unlike most crimes, it arises direct and you could apply many criminal statutes 18 USC 241, conspiracy to deny rights, obstruction of justice, to this behavior and actions. It was a violation of separation of powers, as it is clearly meant by both the Constitutional text, and tradition that the President picks Supreme Court nominees. This is a terrible precedent, allowed to continue, it means that any political party controlling the Senate, has the Appointment power, effectively a transfer of Constitutional Authority.
That the action was unusual is not difficult to measure; it’s never happened before in 200 years. The issue was neither President Obama’s qualifications as President, nor his legal status, nor Judge Garlands qualifications, all were impeccable, far more so than Mr. Trump’s. After Mr. Trump started nominating judges, all of a sudden the rate of confirmation went from slowest to fastest in the history of judicial nominations, filling in seats, previously held open by the Republican party of the United States of America, slowing down an entire branch of government, with far more pressing day to day responsibilities than either of the other two branches.
The intent was that no non Republican judge would be seated on the Supreme Court. Several members went so far as to say that, were Hillary Clinton elected President they would continue Nor was there some sort of unusual circumstanc
Both President Obama himself, as well as Senate Judiciary especially and the Senate in general have strong standing to bring suit in this matter. However, it is pretty clear, as this is clearly a process arising under the Constitution, and involves the make up of sovereign power in the United States, the process of Appointment must be unquestionable and entirely free of the possibility of taint.
The relief? As Obama’s civil rights were violated by the refusal to allow him to pick a Supreme Court Justice- at a minimum, relief is reverting the pick back to President Obama, and removing any, and all of the 5-4 decisions which overturned precedent.
To anyone honest, who is familiar with and directly involved in process- from legal to scientific to business, holding up the whole show from a position of lesser responsibility for selection of team members is an obvious no no. I do not believe 60% of even Republican appointed justices would approve of this action as it is truly repugnant to the law, democratic republic, and the very concept of process itself.
Should this case go to the Supreme Court, Gorsuch would be forced to recuse himself; to end on a 5-4 decision with a person deciding a case on their own job; would be to publicly announce from the Supreme Court that Justice was no longer a thing in America, and it seems unlikely that anyone, no matter their stripe or bend would risk what could very well mark the beginning of full implosion of the United States of America.