The death of Supreme Court Justice Ruth Bader Ginsburg has drawn out the Democrats’ knives. President Trump’s nomination of Amy Coney Barrett, a conservative appellate court judge, wife, mother and Catholic, has sent the party into a frenzy.
Their rants include attacking Barrett’s religion, establishing Supreme Court term limits, challenging the propriety of confirming a justice prior to an election, adding to the size of the court, changing Senate rules about how it does business and adding two new states to the Union.
I acknowledge that both Republicans and Democrats have flip-flopped over the years on several of the Democratic proposed changes.
The Democrats’ dilemma is how to get around the Constitution.
So how does the Constitution affect the Democratic schemes?
First: In Barrett’s 2017 appellate judge confirmation hearing, Democrat Sens. Feinstein and Hirona focused on the judge’s "closely-held (religious) beliefs" and how they might affect her rulings. Now they will attack her for being part of a Catholic charismatic organization. The problem for Democrats is Article VI of the Constitution: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Despite that document, Barrett can expect the same unconstitutional attacks during her 2020 hearing.
Second: Democrats are drafting the Supreme Court Term Limits Act to limit terms to 18 years. Nothing in the Constitution specifically addresses term limits. The concept first appeared in Alexander Hamilton’s Federalist Paper 78. It was then enshrined in Article III, Section 1, of the Constitution with the words: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour …" That has been interpreted as lifelong tenure. Enacting a term limit requires amending the Constitution.
Third: Can President Trump appoint a justice close to an election? The Constitution says "yes." Article II, Section 2, Clause 2 reads: "He (the President) shall have power, by and with the Advice and Consent of the Senate and shall nominate (and) shall appoint … Judges of the Supreme Court." Unfortunately for Democrats, the Constitution "Trumps" Justice Ginsburg’s dying declaration about wanting her replacement named after the election (assuming she really said that), and it "Trumps" the Democrats’ desires to wait until after the election.
Ginsburg herself said, "There’s nothing in the Constitution that says the president stops being president in his last year."
Fourth: Article III of the Constitution and the 1789 Judiciary Act established the Supreme Court. Neither document sets a fixed number of justices. Today we have nine. Democrats want to pack the court by adding liberal-leaning justices because they object to Trump appointing conservative judges. They object to his doing what the people who elected him wanted him to do.
In 1937, President Roosevelt attempted to add six new justices to the Supreme Court because the court was blocking his "New Deal." Neither the Supreme Court nor the people supported it. Opponents characterized it as "an undemocratic power grab." The plan died.
Democrats now are proposing the same scheme. Should the Democrats enact their plot, a subsequent Republican Congress could also add justices. The results would be catastrophic for our judicial system. In 2019, Biden said Democrats would "live to rue that day." Now he repeatedly refuses to give an opinion on the proposal.
Fifth: Democrats object to the Senate having hearings so soon after the nomination. Under Article I, Section 5, Clause 2, "Each House may determine the Rules of its Proceedings …" Senate Majority Leader McConnell has a constitutional right to call hearings and have votes whenever he and the Senate majority desire. Democrats have no legal leg to stand on.
Sixth: To secure a Democratic majority in the Congress, probably for eternity, they are considering adding the District of Columbia and Puerto Rico as states. The calculus is that Democrats will thus gain four Democrat senators and at least two members of the House.
Article IV, Section 3, Clause 1 of the Constitution reads: "New States may be admitted by the Congress into this Union …" Procedure requires Congress to pass a bill to admit the states. As with any bill, the president can veto the bill, but is subject to congressional override.
What Democrats propose would eviscerate our Constitution.
Vote Republican if you believe that the Constitution should not be shredded.
Rich Kiper is a Leavenworth Times columnist.