10/27/2016—I sure hope the Democrats win back the Senate. The reason is that conservatives are already making arguments that nothing in the Constitution requires nine Justices—(I read that Michael Stokes Paulsen makes this case at National Review.) This is just the latest willingness of Republicans to shut down the government if things don’t go their way.
As a constitutional argument, it is not an argument, of course. As the Supreme Court has said many times, the Constitution is supposed to work. The framers would be horrified if they could have foreseen a “faction”—their name for political parties—refusing to perform the role of confirmation of Supreme Court nominees. This is not the same as deciding not to confirm, which if practiced in good faith, is also part of their job.
There is a reason why the Republicans will have to practice obstruction rather than actually hearing nominees and voting them down. The American people would catch on that the game was to refuse any Democratic Presidential nominee.
I am frustrated because Toomey would be part of this and McGinty lacks the talent to nail him on this. I asked a reporter a few weeks ago to put the question to each candidate—will you promise to actually vote on the nominee of whoever is elected President? But the question is not being put. The people of Pennsylvania are not that partisan and would probably not like the refusal to vote. Plus, if there were votes, the obstruction would break down.
Yet, for all my frustrations, there is some sense in the Republican position. This is what happens when you become convinced that there is no possibility of a rule of law. Then the Court is just a power play. Sure, some of these conservatives would say, no, we practice a rule of law, but the other side does not. But this is meaningless. Textualism and historicism are just subjective choices as well. A method you choose for prudential reasons—-maybe even legitimate reasons—-is a substitute for a rule of law. It is not a rule of law. I could point to Bush v Gore. But you see it mostly in the political gerrymander cases. What is textualism there? Sure, you say these cases just happen to give political power to Republicans…give me a break.
Once the objectivity of values disappears, it is gone for everyone. The honest conservative knows that even her conscience cannot be trusted.