Constitutional Jenga

On the campaign trail in the final weeks of the 2020 presidential election, Democratic candidate Joe Biden (along with his running mate Kamala Harris) has steadfastly refused to say whether he would proceed to pack the Supreme Court with progressive justices if he was elected. This dissemblance is in the tradition of House Speaker Nancy Pelosi’s injunction regarding the Affordable Care Act that “we have to pass the bill so that you can find out what is in it.”

This has all come about from President Trump’s insistence on confirming a new Supreme Court Justice to replace Ruth Bader Ginsberg, after her untimely (for Democrats) death. Democrats are outraged at the President’s stratagem to replace a progressive justice with a conservative one. They claim that the President’s nominee, Amy Coney Barrett, a distinguished law professor from Notre Dame University, will ignore stare decisis (or precedence) and undo all the progressive rulings they favor on abortion, same sex marriage and others.

Their outrage has been driven to the edge of madness, because in 2016 Senate Leader Mitch McConnell refused to schedule a hearing for the nomination of a liberal justice by President Obama after the untimely (for Republicans) death of Justice Antonin Scalia in an election year. Back then, Leader McConnell stated that the American people should have a voice in the selection and his refusal was based on, “principle, not a person.” The Democrats that are calling McConnell a hypocrite for rushing to schedule a hearing before the election need to remember that McConnell’s principle is “partisan politics comes first.”

But poor Joe is in a bind. If he says he is not going to pack the court with progressive justices, the progressive left wing of the Democratic Party (that is already unenthusiastic about Joe) will likely not turn out in big numbers on election day. But if he does say he is going to pack the court, then everybody else is going to be outraged and Joe will lose centrist Democrats, and undecideds while galvanizing the Republicans to come out and vote in droves. So, Joe is staying mum. Which means he will pack the Court if he is elected.

It is just one more step in the progressive drive to undo the work of America’s Founders. After a revolution to free themselves from the tyrannical power of King George III, they feared the creation of tyrannical power in the new nation. And noting that the rise of this tyrannical power was often driven by the passion of the mob that could be easily inflamed by populist demagogues, they put into the Constitution checks and balances to limit and diffuse the power of government officials.

As we all learned in civics class, the members of the House of Representatives are elected every two years and the Representatives are the officials most closely attuned to the issues of the day that are driving the passions of the electorate. The senators (originally selected by the state legislatures) are elected for six years with only a third of the senators facing election every two years. Thus, issues of the day that enflame the public might influence some senators, but others have the ability to take a longer view and the inflamed passions often die down over time. Each house of Congress has different powers but must agree on important legislation.

The executive branch under the president has yet different powers and each administration has a four-year term. The president and vice president are not elected directly but by electors chosen in the elections. The number of electors for each state is based on the number representatives in the House (based on population) plus the two senators each state has. This arrangement gives less populous state outsized power but was a necessary compromise to get the smaller colonies to join the union. The fact that President Trump was elected by the Electoral College even though Hillary Clinton won the popular vote has infuriated Democrats since 2016 and put that check on power in their crosshairs.

Finally, justices are appointed to the Supreme Court (and the federal courts under its jurisdiction) for life. Divorced from the politics inherent in regular elections, these lifetime justices are intended to decide cases impartially, unmoved by popular passions or political ideology.

The progressive left has long chafed at these constitutional impediments to their policy initiatives. But that was what the Founders intended. They did not want the nation to veer back and forth with each election. They wanted the populace to have time to reflect on major policy proposals. They wanted major changes in the direction of the country to be based on a broad consensus. And they wanted impartial justices to rule on the constitutionality of the issues they faced and not have nine justices (or however many the Democrats pack the court with) usurp the will of the people as expressed through elected officials by basing decisions on their own ideology or personal beliefs.

Progressives have used the court to mold decisions that are considered outside the original intent of the Framers of the Constitution. Progressives believe the Court should be just another tool to help them implement their progressive vision even though they lack the consensus required to amend the Constitution. As an avowed “originalist” nominee Barrett would frustrate progressive ambitions and even jeopardize previous decisions that are not well founded in constitutional law.

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Progressives from Woodrow Wilson to Joe Biden have wanted to relieve elected officials of responsibility and place our lives into the hands of scientists, administrators and other unelected so-called experts. They want to do it with COVID-19. They want to do with climate change. They want to do it with fuel efficiency. They have administrated nuclear energy practically out of existence. They have administrated California into a raging inferno by forbidding brush clearing in order to protect some bird or lizard species instead of the lives or property of citizens.

Way back in 2016 President Obama gave students the advice to do “what works” in order to obtain the goal or outcome they sought. So, progressives want to do “what works” to get the appropriate racial and gender balance in elite colleges, corporate boards and scientific specialties. They want to defund the police, end systemic racism and redistribute income to achieve their progressive goals, whether you want that goal or not.

They want the EPA without legislative oversight to determine how to run our lives to achieve their environmental goals. They want the justice department and the courts to define congressional districts to get the proper number of elected officials of color. They want the FDA to tell us when and how to reopen the economy.

There is one little problem. The Constitution and its checks and balances against such actions. The progressive left does not have the broad consensus necessary to change the Constitution to achieve their goals. They are elitists (what Thomas Sowell call the Anointed) who think they know what is best for us better than we do. They have no hesitation in telling us what to do – it’s for our own good. And they don’t lose any sleep over taking our hard-earned money and giving to someone else. Bernie Sanders says it’s his goal to eliminate billionaires and their “obscene wealth gains.”

And so, unable to build the broad consensus necessary to amend the Constitution, and contemptuous of the requirement to do so, they want to evade the Constitution by appointing justices who will rule based on their personal opinion and leftist ideology rather than the rule of law.

I have seen how socialists gain and retain power in country after country. A populist president gets elected. The first act of the newly elected socialist president is to concentrate all power in the executive. The court is packed with cronies. The legislature grants the president extraordinary powers. Independent unions are rolled into a government run national union. A constitutional convention is called to concentrate even more power in the executive and to allow the continual reelection of the president. I saw that in Venezuela, In Bolivia. In Nicaragua. It was the same in other socialist regimes.

And it appears to be part of the progressive playbook here in America. Look at their agenda; pack the court, eliminate the Electoral college, block the filibuster, enhance the administrative state. Which check or balance that the progressives eliminate will cause our Constitutional Jenga structure to collapse? I believe that many Democrats do not understand the implication of these policies. They don’t see what is down the road. They haven’t read Saul Alinsky. They don’t realize that the Black Lives Matter organization is a Marxist political faction. They are unaware that the goal of the 1619 project promoted by the New York Times is to totally transform the United States into something completely unrecognizable.

We need to tell them.