The Irony of President Trump’s Supreme Court Nomination: Undermining the Rule of Law

January 31, 2017
Guest Post

by Mark S. Kende, James Madison Chair in Constitutional Law, Director of the Drake University Constitutional Law Center

Tonight, President Trump announced his nomination to the Supreme Court. In doing so, he ratified the inappropriate actions taken by Sens. McConnell, Grassley and others in the Republican Party who refused to give a confirmation hearing to the bi-partisan endorsed and highly credentialed nominee of President Obama, Judge Merrick Garland, Chief judge of the Court of Appeals for the D.C. Circuit. During that refusal delay, the Senate also reduced the status of the judiciary as the Supreme Court only had eight members and could not fully function. The Senate trampled on the idea of three equal branches of government. Republicans further failed to comply with the federal law specifying that there be nine Justices. Ironically, President Trump and these same Republicans now expect the Democratic Party to proceed with confirmation hearings on this nominee. 

To add to the irony, Republicans said that a Garland nomination was problematic during an election year and “the people” should decide. Though President Trump certainly won the Electoral College, almost three million more people voted for Secretary Hillary Clinton. Thus, if this was a true plebiscite, Chief Judge Garland should still be the nominee by the Republican’s own reasoning. Of course, the Republican statements about the people were little more than window dressing for a raw and unfortunately successful, political calculation that they could stall the Obama nomination (he was supposed to be President for a full eight years after all).

Given this context, the Democratic Party and other groups should scrutinize President Trump’s nominee with a fine tooth comb. The Republicans have already suggested they will break any attempted filibuster from the Democrats by using the “nuclear option,” (they have the numbers), though a few Republicans who believe in fairness and collaboration have expressed wariness about this drastic action. Fortunately, the Democrats seem to have a stiffer backbone recently, given the extraordinary national protests in the streets and airports in just the week plus that President Trump has been in power. So the Democrats will hopefully make things fairer by utilizing various means to show the Republicans that both parties can play hardball.

What is so unfortunate is how the Republicans have injured the Supreme Court. This is not a game. The Court is supposed to be, in many respects, the most deliberative body in the national government, since it must author detailed decisions with specific reasons. Yet the Republicans have managed to further make the Court into a body that many people feel is basically political. This only adds to the reality that President Trump and his administration are not statesmen or women looking out for the best interest of society and that they are not governing in the interest of all Americans, especially Democrats and the media (whom they have dangerously criticized). Instead, one of their major functions seems to be to undermine the rule of law and replace it with a dangerous political autocracy.