The political issue that will be front and center from now going forward will be a judicial one: stare decisis. Simply defined that means, using prior judicial decisions, and precedent, as the main legal support for a decision under consideration. Proponents of this well-established approach suggest that, barring any new shift in circumstances, we should let existing rulings stay in place…even if wrongly decided.
We will, for example, hear a great deal about Roe v. Wade in the coming months. The opening created on the Supreme Court of the United States (SCOTUS) by the retirement of Justice Kennedy opens a huge can of worms. The Democrats have already announced that all 25 people President Trump has started to consider for the appointment are, “not qualified.” Such is the ‘my mind is made up, don’t confuse me with facts’ approach of Senate Democrats under Minority Leader Chuck Schumer. If you wonder why Congress has a favorability rating in single digits, look no further than such obstinacy by Democrats.
For the record: I was not during his tenure nor will I ever be a fan of Barack Obama as President. That said, he did appoint- and get confirmed- two Judges to the SCOTUS. Obama’s picks were Sotomayer and Kagan, both of whom were not suited to the highest court in the land. The Constitution gives wide discretion to the President in making such appointments, even with Obama we should honor that authority. Remember: elections have consequences.
In her confirmation hearings, Sotomayer defended her previously having said that because of her life experiences a Latina would have a greater perspective and therefore be justified making rulings that fly in the face of the Constitution. That is a racist statement; and yet she was not held to the same standard anybody else would have been. As a Justice, she has demonstrated her commitment to that view on more than one ruling already.
It is one thing to have a different point of view; even progressives are allowed to give voice to their opinions under the First Amendment (1A), but it is entirely a different matter for a Justice on SCOTUS to knowingly base their formal opinions on grounds that do not have any legal underpinnings. The oath for SCOTUS is to uphold the Constitution, period.
Kagan was a completely political appointment. To progressives, her main credential is her sexual preference. Like it or not, sexual preference is not a disqualifying factor in and of itself. More importantly, her deficiencies start with the fact that she had no judicial experience, and had never served as a Judge. Her immediate prior experience was as Solicitor General in the Obama administration where she help design and defend the Affordable Care Act (ACA), also known as Obamacare. Given that, there was no way she should have been involved in any decision on the merits of the ACA, yet she defended her ability to be unbiased during her confirmation. Since being confirmed, she refused to recuse herself on the pivotal Obamacare ruling of the SCOTUS (thus far).
So Obama appointed two people to SCOTUS that were simply not up to what should be the high standards for appointment. In spite of those grievous examples of how progressives are perfectly comfortable destroying the credibility of our government, again, President Obama had the legal right to make those appointments.
That also means the same consideration should be given to President Donald Trump.
There are already howls from the left even before Trump has nominated someone, grasping at straws of every kind, each more ridiculous than the last, making absurd emotional arguments why he should not be allowed to appoint another Justice. The one argument that will get traction, however, is whether a ‘right’ to have an abortion (the wrongly decided 1973 ruling of Roe v. Wade) should be overturned.
Will stare decisis continue to confirm precedent as a legal basis that enables the government to sanction the murder of babies? Have circumstances changed enough that SCOTUS should re-consider Roe v. Wade? Would doing so cause more harm to society than good? Will any person appointed have any possibility of being confirmed if they say they are open to reconsideration? Should one’s religious beliefs be considered along with other factors?
Both sides of our already badly fractured society will make heated arguments in the coming months in support of or against stare decisis. For some of us it’s an easy choice: the only laws set in stone were written on the tablets that came down from Mt. Sinai.
