Robert Jakubowicz: A horse-and-buggy Supreme Court

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PITTSFIELD — No matter what happens to President Donald Trump, he and his Senate GOP majority are poised with their federal judicial appointments to create a judicial legacy that, according to Senate Majority Leader Mitch McConnell (R-KY), will have "a chance to transform the country in a very significant way for the next generation."

McConnell underscored this legacy in an interview last year with the editorial board of `Kentucky Today." He said that: "I thought the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I've made in my entire public career that will last the longest time." He told the board that shortly after Trump's election, he contacted the White House to begin quickly nominating appropriate, conservative judges in their 40s and 50s. McConnell sounded more interested in keeping a Senate majority in the recent mid-term election because "We could still approve (these) appointments, which is a huge part of what we do," despite losing the House of Representatives to Democrats.


McConnell viewed a Democratic takeover of the House as stymieing legislation rather than making it necessary for Republicans to compromise with the Democrats to make the government function. And more to the point, his unprecedented action of refusing to hold a Senate confirmation hearing for former President Obama's nominee to fill Scalia's vacancy was just as loud as his words. McConnell by his words and action has completely dispelled the pretense of past presidents and senators, from both political parties, that judicial appointment were all about seeking candidates with great legal acumen, neutrality, and judicial restraint. The hallmarks of good judges.

Trump and McConnell have been very successful in this joint effort . Neil Gorsuch, Trump's first appointee to fill Scalia's vacant seat on the Supreme Court, is 51. Brett Kavanaugh, who said the Constitution must be interpreted as written, was his second appointee to that court at age 52. These two appointees are considered by Trump, McConnell and the Senate majority as dependable conservatives who can be relied upon to join Justices Samuel Alito and Clarence Thomas to provide four solid conservative votes to transform the country.

They need a reliable fifth vote for a conservative majority. Chief Justice Roberts initially was considered a conservative, but he has proven to be somewhat unreliable, especially since his deciding vote against repealing the Affordable Care Act. Trump and McConnell are now one vote short of their goal. But they obviously see the possibility of adding a solid conservative to the court because of the possibility of at least one other vacancy. They are watching for Justice Ruth Bader Ginsberg to leave because of her age, 85, and her many medical issues. In my opinion, this is a one of the reasons why McConnell and the GOP Senate majority still tolerate and enable Trump's presidential foolishness.

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The drafters of the Constitution that created the overall power structure of this country's government to be separated among three, equal ruling branches, certainly did not intend that one branch would be empowered to transform the country in significant ways. But that is how McConnell is talking and acting. He unequivocally said that his goal to transform America, as he thinks it should be, for the next generation of Americans is to pack a solid and reliable majority of conservative judges from the Supreme Court on down to as many lesser federal courts as possible. A large number of such judges have already been appointed.


Former President Franklin Delano Roosevelt's attempted to pack the Supreme Court to enable it to constitutionally allow his New Deal legislation. Trump and McConnell are actually packing the court for a different reason. They want it to constitutionally strike down existing legislation, such as regulating medical care insurance coverage (the Affordable Care Act), and other Court-interpreted constitutional rights (abortion, same sex marriage, collective bargaining), as well as preventing a long list of regulations (environmental, food and transportation safety, campaign finance), and safety net programs (food stamps, housing subsidies, Medicare).

McConnell is striving for the appointment of federal judges who would go back to a bygone era by applying a meaning the Constitution may have had in 1787 to issues in 2019. The consequences of which would be a small federal government of elected officials, a strong military force, some national security agencies and little else. The historical fact is that the nation has had a majority of Supreme Court justices, more than less, who recognized that the "genius of the Constitution," as expressed by former Justice William Brennan was "in the adaptability of its great principles to cope with current problems and needs. This is what made America great.

Justice Ginsberg is one of those justices and I wish her good health and stamina to outlast the Trump administration and end the move to return America to a horse-and-buggy Supreme Court.

Robert "Frank" Jakubowicz is a regular Eagle contributor.


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