“The Constitution says what it says, and it doesn’t say anything more.” “The judge who always likes the results he reaches is a bad judge.” – Recently deceased Supreme Court Justice Antonin Scalia
“(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court…(and) shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” – US Constitution, Article II, Section 2
“Except when it would make us unpopular with our constituents or donors” – This is not a quotation. It is a conclusion based on the behavior of elected officials.
President Obama says that he will follow the constitution and do his job by nominating someone to fill the Supreme Court vacancy created by Judge Scalia’s death. Senate Majority Leader, Mitch McConnell says that he will not allow a vote on any candidate nominated by President Obama. McConnell is backed by other Republican leaders who have pledged not to meet with nominees or hold hearings to consider them. They argue that the nomination should be delayed until after the next Presidential election so that voters can influence the matter. But voters have already spoken. We elected a Republican majority to the Senate and a Democrat as President (twice).
In this matter the President is following the Constitution and Senate Republicans are not. Republicans accurately respond that Democrats have done similar things, including seeking to delay nominations to the Court until they had a chance to win a Presidential election. We could reasonably ask leaders of both parties, “Didn’t your parents teach you that two wrongs don’t make a right?”
The behavior of both parties is particularly onerous when they attempt to manipulate the composition of the Supreme Court in order to influence its decisions on specific issues. Most Republican officeholders interpret the Constitution as allowing state or federal laws that ban all abortions while Democrats think it protects the rights of women to make decisions about their own bodies. The battle lines over marriage equality, regulation of gun ownership, immigration and other social issues are drawn in approximately the same place.
On each side of our hot social issues there are powerful advocacy groups with vocal supporters demanding that elected officials do whatever it takes to win the day. They often insist that office holders ignore constitutional obligations if that will help their cause. Anyone who doesn’t comply is likely to face well-funded opposition in the next primary election. That is how populism works.
Populist behavior is as old as our nation and its constitution. President Andrew Jackson and the Congress provided an early and extreme example. The United States agreed by treaty that The Cherokee Nation was independent, with its own legal boundaries but white settlers (illegal immigrants) persisted in occupying Cherokee land. When Cherokees removed some white settlers forcibly, they demanded military protection. Then gold was discovered on Cherokee land and the problem quickly escalated. States passed laws banning meetings of the Cherokee legislature and argued that the federal government had no right to intervene in state affairs. The US Supreme Court ruled in favor of the Cherokees but American voters and powerful interest groups wanted the gold and the land. President Jackson, with support of the Congress, defied the Supreme Court and allegedly said of the Chief Justice, “John Marshall has made his decision. Now let him enforce it.” Jackson dispatched the Army to remove the Cherokees from their land, sending them on a journey to Oklahoma that we now call the “Trail of Tears”. If ever there was a time when a Congress should properly have impeached a President and removed him from office, this was it.
When you hear the word “populist” used to describe a politician, it may refer to someone who will do whatever it takes to implement the will of his hard-core constituents, even defying the Constitution, courts, and laws to the extent that he can. Andrew Jackson, George Wallace, Joe McCarthy, and Donald Trump are a few examples. They are very dangerous because they are willing to sacrifice the principles of a free nation on the altar of one special cause if that will get them elected. If you notice one of them running for office, I hope you’ll vote for someone else. I plan to.
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to hear Harold Thom and the Cumberlands sing the story of Cherokee Chief Junaluska, who saved Andrew Jackson’s life then lived to regret it after walking The Trail of tears.