Though it’s not stated in the U.S. Constitution, the quality of fairness is embodied in our government. After all, we are a nation of laws, and that alone speaks to reason and decorum in deliberations. Throw out fairness and you move toward chaos.
Without fairness, you raise questions of trust and partiality and bias, and even decorum.
This basis of fairness in our everyday lives extends to relationships and commerce. Without fairness, major questions arise in our day-to-day activities.
We raise these points in considering the recent confirmation of Neal Gorsuch to the Supreme Court. We congratulate him on his elevation from U.S. Court of Appeals from the 10th District. We presume that as a lawyer, Judge Gorsuch always thought such a position as desirable and sees this confirmation as the pinnacle of his legal career.
However, Judge Gorsuch’s name will always be associated with that of federal appellate Judge Merrick Garland, the choice last year of President Barack Obama for the vacancy created when Justice Antonin Scalia died unexpectedly on February 14, 2016.
A month later, on March 16, 2016, President Obama nominated Merrick Garland, the chief justice of the United States Court of Appeals for the District of Columbia, to the Supreme Court. This was a normal procedure. Judge Garland was a reasonable and somewhat centrist choice, and his confirmation was anticipated.
Our country recognized that by having a nomination from a Democratic president, it was possible that this could influence the tenuous split on the Supreme Court, possibly giving centrist elements a 5-4 majority over conservative judges.
Then a bombshell struck! Senate Republicans maneuvered with what was a virtual pocket veto of the president’s choice. They simply announced that the Senate would not hold hearings on the potential justice. With Republicans having a majority in the Senate, this derailed the president’s choice in making the nomination. And we had a divided 4-4 court all these months.
This failure to hold hearings on Judge Garland smacks of downright unfairness.
The one elected official responsible for this unfair shenanigan and this usurping of the normal process is Sen. Mitch McConnell of Kentucky, the Senate majority leader. While there has been deep partisanship in Washington within the last decades, no element of policy has approached the level that this division has brought to our government.
This obvious partisanship is not confined to the Republicans. The Democratic Party also shares the blame for this continual divide.
But one person within the Republican Party, Senator McConnell, has been responsible for such a high level of unfairness in this selection of a new Supreme Court justice. Senator McConnell will go down in history as the architect for deep mistrust in the way the Senate has maneuvered in this nomination. Never in its years of history has it taken such a major step in uprooting established transition.
McConnell’s final move last week was having his Senate colleagues adopt the “nuclear option” of allowing only a majority of senators (not the normal 60) to confirm court nominees. While Senator McConnell may delight in his victory now, this can come to haunt Republicans in future years, when as it usually happens, the party in power loses, and now has to abide by the same rules that it forged, without being in power.
And who’s to say when the Republicans will lose their current majorities? Sometimes the winds of government shift quickly, as Democrats now realize… and Republicans may soon.
We yearn for the days of established rule, a more courteous government, with objective equal treatment in an impartial and fair manner. Senator McConnell has ensured that we don’t have that now.