My Thoughts
When then is truth the truth? It is difficult if nigh impossible to discern what is true in a world blanketed with the fog of vague accommodation, exacerbated by the smoke and mirrors of unholy hallucinogenic carnival now set before us. It is a nightmare within a nightmare, everlasting should we perchance never awaken. For a frightening moment now The Matrix seems far too real to be dismissed as mere science fiction. Could it possibly be reality is but a dream? Where is Neo when we need him? Who among us is willing to take the red pill and wake up to reality, to know the truth, to be freed from the umbilicus of the propaganda machine?
For those of us who grew up in the fifties and sixties, the Cold War and the nightmare threat of a nuclear winter were ever-present and terrifyingly real. The media for a few decades at least were mostly honest purveyors of the news, reporting mostly facts, less opinion, seldom deliberate propaganda. Everyone knew what propaganda was and it was Pravda, the Soviet communist party newspaper; everyone knew that Pravda was Russian for Truth, that it was anything but, far from it.
Alas, no more, here in America. The truth has become extinct, or nearly so, to the point it has become difficult to find a spot of honest journalism among the nuisance rags and Pravda drones. It is enough to make a sane man wretch. What is reported is seldom news at all but moronic opinion, fact is what one is told to make of it, truth is but a lie with sweetener to hide the bitterness when swallowing. Fools spew foolishness and we the bigger fools to purchase any slice of it.
Surface consistency is not a strong suit of America’s contemporary propagandists. There is, however, an underlying consistency: any statement that serves the interests of the ruling class and hurts Trump and his supporters is good. Period.
Hence expect to hear endless denunciations of Trump’s renegotiated trade deals as catastrophic—and inconsequential. Similarly, on immigration, the narrative will be: Trump’s racist xenophobia was a racist overreaction to a nonproblem—that crippled our economy by depriving it of desperately needed workers . . . when the unemployment rate was over 15 percent. On foreign policy, the line already is: Trump’s recklessness risked calamitous war—while he recklessly pulled American troops out of combat zones in Syria and Afghanistan and tried to negotiate a peace deal with North Korea.[1]
Then and now are so revealing but only when side to side, which of course, is seldom to be the case. One quick example to prove the point. With the passing of Ruth Bader Ginsburg you would think we are in a existential constitutional crisis; all the usual suspects are clamoring, ranting, and inciting mayhem should the president dare nominate—as is his constitutional duty—someone to fill the vacancy. The voices on the left (Biden, Harris, Pelosi, H. Clinton, Sanders, Warren, Schumer and others) are absolutely beside themselves, threatening yet another impeachment—for what, obstruction in doing what the president is called to do? Yet, the same folks sang a far different tune just four years ago. Imagine that!
Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic.
Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.
During the 1844 election, for example, there were two open seats on the Court. John Tyler made nine separate nominations of five different candidates, in one case sending up the same nominee three times. He sent up a pair of nominees in December, after the election. When those failed, he sent up another pair in February (presidential terms then ended in March). He had that power. Presidents have made Supreme Court nominations as late as literally the last day of their term. In Tyler’s case, the Whig-controlled Senate had, and used, its power to block multiple nominations by a man they had previously expelled from their party.
In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties. In six of the ten cases, a nomination was made before Election Day. Only one of those, Chief Justice Melville Fuller’s nomination by Grover Cleveland in 1888, was confirmed before the election. Four nominations were made in lame-duck sessions after the election; three of those were left open for the winner of the election. Other than the unusual Fuller nomination (made when the Court was facing a crisis of backlogs in its docket), three of the other nine were filled after Election Day in ways that rewarded the winner of the presidential contest.
Nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Ten of those nominations came before the election; nine of the ten were successful, the only failure being the bipartisan filibuster of the ethically challenged Abe Fortas as chief justice in 1968. Justices to enter the Court under these circumstances included such legal luminaries as Louis Brandeis and Benjamin Cardozo. George Washington made two nominations in 1796, one of them a chief justice replacing a failed nominee the prior year. It was his last year in office, and the Adams–Jefferson race to replace him was bitter and divisive. Woodrow Wilson made two nominations in 1916, one of them to replace Charles Evans Hughes, who had resigned from the Court to run for president against Wilson. Wilson was in a tight reelection campaign that was not decided until California finished counting votes a week after Election Day. Three of the presidents who got election-year nominees confirmed (Benjamin Harrison in 1892, William Howard Taft in 1912, and Herbert Hoover in 1932) were on their way to losing reelection, in Taft’s and Hoover’s cases by overwhelming margins. But they still had the Senate, so they got their nominees through.
Nine times, presidents have made nominations after the election in a lame-duck session. These include some storied nominations, such as John Adams picking Chief Justice John Marshall in 1801 and Abraham Lincoln selecting Chief Justice Salmon P. Chase in 1864. Of the nine, the only one that did not succeed was Washington’s 1793 nomination of William Paterson, which was withdrawn for technical reasons and resubmitted and confirmed the first day of the next Congress (Paterson had helped draft the Judiciary Act of 1789 creating the Court, and the Constitution thus required his term as a senator to end before he could be appointed to the Court). Two of Andrew Jackson’s nominees on the last day of his term were confirmed a few days later, without quibbles. In no case did the Senate reject a nominee or refuse to act on a nomination; why would they? Three of the presidents who filled lame-duck vacancies — Adams, Martin Van Buren, and Benjamin Harrison — had already lost reelection.
The bottom line: If a president and the Senate agree on a Supreme Court nominee, timing has never stopped them. By tradition, only when the voters have elected a president and a Senate majority from different parties has the fact of a looming presidential election mattered. When there is no dispute between the branches, there is no need to ask the voters to resolve one.[2]
It may simply be my poor imagination, but it seems the infants are throwing an over-the-top hissy-fit, doing a lot of spitting against the wind while standing on a one-legged stool. In other words, they are making complete fools spitting on themselves without a leg to stand on. But then, perhaps they have always been what they look to be, after all, leopards never change their spots. Wake up America.
Just my thoughts for a Tuesday, for what it is worth.
[1] Michael Anton, “Tyranny Perpetual and Universal?”, American Greatness, August 29, 2020.
[2] Dan McLaughlin, “History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020”, National Review, August 7, 2020.
