An Illegitimate Justice

May 1, 2017

Under the Constitution of the United States, the power to appoint a justice of the Supreme Court of the United States rests on the President of the United States who appoints the nominee and asks the Senate to confirm that appointment.

The Senate Judicial Committee holds hearing and based on responses received from the nominee recommend the nominee for the vote by the entire Senators.
It requires minimum of 60 votes to confirm a nominee. That is how it has been for many decades. The supermajority affirms that both members of the Democratic and Republican parties have confirmed the nominee and such validation is important for smooth governance.

There is no timeline set in the Constitution as to when a President during his presidency can or cannot appoint a nominee for a vacant seat in the Supreme Court. So on February 13, 2016, when Justice Scalia died, his seat became vacant and under the Constitution of the United States, President Obama had the power to appoint a nominee for this vacant seat.

Soon after Justice Scalia’s death, President Obama nominated, Judge Merrick Garland to fill the vacant seat. Republicans in the Senate refused to even meet with the nominee, let alone to schedule a confirmation hearing. They argued that given that President Obama was in his last year of presidency, the appointment should be left to the incoming president. Of course, they were hoping that the new president to be a Republican. The irony is that Republicans had previously approved Judge Merrick Garland and found him a reasonable and centrist judge. But suddenly he was not good enough, because a Democratic President appointed him.

Given that it was the year of campaign and election all attentions were focused towards the campaigns. Surprisingly, Mr. Donald Trump won the Republican primary and even more astonishingly, Mr. Trump won the presidency of the United States, even though he received about three million less votes that his rival, Secretary Hillary Clinton.

Once he took the oath of office, President Trump appointed Judge Neil Gorsuch who is known for his right wing and very much pro-corporation as the candidate for the vacancy in the United States Supreme Court.

Then came the hearing during the confirmation and because of responses that were given by the nominee, Neil Gorsuch, many Democratic Senators decided to vote against him. By doing so, the nominee would not receive 60 or more votes, so the President Trump would have to appoint someone else.
There comes, Senate Majority Leader, Mitch McConnell, to the rescue. He decided to do away with supermajority rule and instead go for simple majority which requires 51 or more votes in the House of Senate.

Given that there are 52 Republicans in the Senate, getting 51 votes would not be a problem. Despite the moan and groan of the Democrats and filibustering, candidate Neil Gorsuch was confirmed and sworn into the office.

Refusing to hold a hearing for Judge Merrick Garland, then breaking the Senate rule by making it a simple majority, the confirmation of Judge Gorsuch become illegal and as such he is an illegitimate justice, as he was not properly appointed and confirmed.

In order for Judge Niel Gorsuch to become associate justice, candidate Merrick Garland was deprived of any hearing and the Senate rule of supermajority was breached. It is also amazing that so much advertisements were made on televisions to encourage members of the public to call their senators so they vote for Niel Gorsuch. This was completely new and proves that even the Trump administration was not sure that Judge Gorsuch could be confirmed so they had to resort to spending money to put ads on TV for public support.

What the Republicans have unknowingly done, they opened the gate wide open and as it is said “what goes around, comes around”. Sooner or later, the roles will be reversed and there would be a payback when Democrats do not have supermajority to confirm a Democratic President’s nominee to the Supreme Court.

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