by Mary W. Maxwell, LLB
I am writing this article to propose that President Donald Trump and the new US Supreme Court nominee, Amy Coney Barrett, volunteer to hold back on her confirmation until late January 2021. There’s no requirement at all for them to do that. Article I, section 2 of the Constitution says of the president:
“He … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States….”
The only thing that could alter that 1787 wording would be a later interpretation of it by a Supreme Court judgment saying, for example, that no confirmations should be held during a lame-duck session of Congress. There has never been such a ruling, nor should there be.
So why do I ask that Trump and Barrett make a gesture by holding off? Because it would take the partisan-ness out of this particular event. It would save the nation from hearing practically every media commentator go through the routine of counting red states, blue states, Republican senate “defectors,” etc. Name-calling has already begun.
Why must we hear discussion of how the judge-confirming game will be played? I am sick of “gaming” in any matter related to our judiciary. It was very moving to see our flag flying at half-mast this week for the much-admired Ruth Bader Ginsburg. Let’s think how wonderful it may be to get another worthy soul on that bench. Seriously.
If either Barrett or Trump would make the gesture of holding off, they would win hearts and minds. Is that counter-intuitive? It shouldn’t be.
Those two persons would be sticking up for the spirit of the law. They would be sticking up for the majesty of the court. They would be sticking up for Americans, in the sense of all being able to participate joyfully in the matter. We can’t really participate if there is a looming deadline, can we? After January 20, 2021 there will be no pressure.
The Specific Dates Involved
On November 23, 2020, there will be a general election, involving the office of president, all 435 members of the House of Reps, and 33 of the 100 senators.
By January 3, 2021, we will have all the newly elected Congresspersons in place on the Hill. (It is only the 100 senators that vote on confirmations, of course). All will have taken the oath to support the Constitution.
By January 6, we will know who the president will be for 2021-2025. Many people think we learn on November 3 who the “president elect” is, but that’s not correct, thanks to the 12th Amendment of the Constitution, which lays out the rules for the Electoral College.
The Electors are to meet on December 14, 2020 and cast their ballots and these ballots are to be opened by the president of the senate on January 6.
If there is a clear winner – one who got 270 electoral-college votes — fine. If not, Representatives in the House will cast one vote, per state, for any of the three contenders who got the most electoral votes. They must keep on balloting until a president is chosen.
On January 20, 2121, that president begins a four-year term of office. It may be Trump. It may be Biden. It may be someone else.
Kick “Parties” Out of the Supreme Court
Parties do not belong on any bench, state or federal. When a case comes before a judge, he or she should attend to it in a way that would not reveal what “Party” he or she belongs to.
I realize that the statement may sound startling to some. But it’s really very unstartling. What wiggle room is there for any judge to do anything other than apply the law?
I am a member of the Republican Party and hold conservative positions on most issues. I’ve read that Amy Barrett is a conservative Constitutionalist. Well, that’s nice. I can foresee such a person winning a senate confirmation no matter which party is “in power.”
Come on, Judge Barrett, ask for a postponement. Stand for principle. You will really go down in history for that!
Mary W. Maxwell is author of “Prosecution for Treason.” She lives in Concord New Hampshire and co-edits GumshoeNews.com
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