Original Intent (Extended and Revised)

One of the great problems with contemporary politics is that people no longer talk with anyone who doesn’t agree with them.

And why should we?  We now have our own news networks – FOX for those who call themselves “conservative”, NBC and NPR for those who call themselves “liberal” or “progressive”.  The internet continues to spawn the electronic equivalents of grocery-store tabloids - “news” outlets which will, in essence, tell you that your worst fears and imaginings pale in comparison with the latest revelations. 

Americans have long enjoyed the freedom to express their opinions.  Now, it seems, we have acquired the freedom to select our own facts.

All of which is bad enough.  But the worst of it is, simply, that because we don’t listen to each other, we have no idea how to persuade each other – even in those rare moments when persuasion becomes possible.

A classic example of this phenomenon is developing in the contest over President Obama’s nomination of DC Circuit Chief Merrick Garland to the Supreme Court. 

Even before Judge Garland’s nomination, Senate Republicans had unanimously announced their refusal to consider any appointment made by the current President, and their determination to wait until “the people” had chosen a new President.

The justifications the Republican Senators have offered are necessarily thin, since the Constitution makes no distinction between the powers of a newly-inaugurated President and one in his last day on the job.  Manifestly, “the people” elected Barack Obama to serve as their President until January 20, 2017 – and elected this Senate to perform its constitutional functions until its successors are sworn in a few weeks earlier.

One imagines what these Senators would say if Mr. Obama decided to spend the next ten months working on his golf handicap, rather than attending to matters of state.  By the Senators’ reasoning, he would certainly be justified in doing so.

But what must truly sting is that the Senators have rather boxed themselves in.   Public opinion is running almost 2-to-1 against their position, which is a problem when their 54-vote majority is very much in jeopardy.

Fully 24 of the 34 Senate seats up for election this November are held by Republicans, and six Republican incumbents are considered particularly vulnerable.  It would not take much to produce a new Senate with a slight, but workable, Democratic majority.

If a Democrat prevails in November’s Presidential election, this could assure either the quick approval of Judge Garland, or the appointment of a more reliably liberal, and much younger, Justice by Mr. Obama's successor.

Moreover, the Republicans’ unpopular stance over the Garland nomination – which daily brings into fresh relief their seven-year-long record of legislative recalcitrance – makes it considerably more likely that the Democratic Party will hold onto the White House.

But the Senators’ problem runs deeper.  The Republican Party seems likely to nominate the mercurial Donald Trump, and there is absolutely no predicting whom a President Trump – a narcissistic populist with no discernible political philosophy – might nominate for the bench.

All in all, Republican Senators must surely, by now, have realized that they have painted themselves into a particularly sticky corner – and be wondering how they might extract themselves from it.

This seems a time when Democrats, liberals, progressives, and what-have-you might want to offer their opponents a lifeline.  Surely, at least a handful of Republican Senators would appreciate any honorable excuse to back down from their precipitous and ill-advised position. 

And a handful would be enough.

But of course, in a nation which refuses to expect serious bilingualism from its public schools and universities, it’s hardly surprising that those on the Left don’t “speak conservative”. 

Or even appreciate the difference between the handful of Republican Senators who are genuinely conservative, and those who simply use that honorable term to cloak an irrational mashup of bigotry, ignorance, superstition, greed and anti-intellectualism. 

Which is to say that the present approach of the Left gets it all wrong.  To denounce this Senate for obstructionism is merely to reiterate the obvious.  To threaten it with liberal disapproval will only stiffen the spines of reluctant Senators.

But what if the President and his supporters tried a different approach on these Senators?  What if they, in the words of a great American conservative, appealed to “the better angels of their natures”?

  

While most of today’s so-called “conservatives” are anything but, there are still Republicans – including a few Senators – who revere the shades of such conservative giants as Edmund Burke and Alexander Hamilton.

True conservatives might be persuaded by a genuinely conservative argument – such as an appeal to the established constitutional practice and clear “original intent” of the Founders of the Republic.

On the question of filling judicial vacancies, the Founders are very much on record.  While most Founders were still alive and active, President John Adams – who had been defeated for re-election by Thomas Jefferson and Aaron Burr – appointed his Secretary of State, John Marshall, to serve as Chief Justice of the Supreme Court.

Marshall was appointed on January 20, 1801 – just six weeks before Adams’ “lame duck” presidency was due to expire.  A “lame duck” Senate confirmed Marshall one week later.

Thus, the greatest and most consequential judicial appointment in American history took place at the tail end of a presidency repudiated by the American people.  Chief Justice Marshall officially assumed his duties on March 4 – the day on which Thomas Jefferson was sworn in as Adams’ successor.  Jefferson served for eight years, Marshall for 34.

During those years, Marshall powerfully established the role of the Court as the final arbiter of constitutional issues - the court of last resort when the Constitution had to be interpreted.  If not for Marshall, no one would much care whom President Obama appointed to a not-so-Supreme Court.

But the point, again, is that Marshall's appointment came far later in Adams' term than Judge Garland's.  And, since both Marshall and Adams - and many of the Senators who confirmed the appointment - were members of the generations which fought the Revolution, wrote and ratified the Constitution, and otherwise founded the Republic.

John Adams, one of the committee which wrote the Declaration of Independence, has as good a claim to the title of “Founder” as anyone in our national history.  John Marshall, served honorably on General Washington’s staff during the Revolution.  Though a generation younger than Adams, he was clearly a member of the Founding elite.

Whoever eventually takes the open seat on the Supreme Court, he or she will be occupying the place of Justice Antonin Scalia, the Court’s pre-eminent conservative and chief exponent of the doctrine of “original intent” - the doctrine that we should be guided by the Founders' understanding of the Constitution, even today.

Ironically, the Founders’ “original intent” concerning filling Supreme Court vacancies can be summarized in precisely two words - “John Marshall”.

Republican Senators are ignoring this point, but can only continue to do so if those on the Left fail to make it, publicly and repeatedly.

Those who don’t speak conservative should keep that in mind, if their intent is to persuade a few Republican Senators and gain a hearing for Judge Garland before the end of the present administration.