Ken Ferries

To quote the Rolling Stones: “You can’t always get what you want, but if you try sometimes, well, you might find, you get what you need.”

So, what does Mick Jagger et al. have to do with filling the spot left on the Supreme Court by the passing of Justice Ruth Bader Ginsburg, perhaps better known as “Notorious RBG”? Her death, with just a little more than 40 days until a presidential election, has both parties manning the battlements and distributing the torches and pitchforks.

The stakes are high. If her successor is nominated by President Trump, and confirmed by the Senate, it would give the court an almost insurmountable right-wing-leaning 6-3 majority.

Achieving this Supreme Court bench would be the crowning achievement of his and Mitch McConnell’s master plan to remake American jurisprudence in their own image of a white male-dominated utopia that may, or may not, have ever existed.

But there is a price to pay.

In their successful operation to deny President Obama’s nomination of Merrick Garland in 2016 (and along the way trashing generations of political convention), many Republican senators now up for reelection went on the public record in support of the proposition that a Supreme Court nomination so close to an election (eight months) should be delayed until after the election to allow the people to weigh in with their opinion.

This additional constraint on the presidential appointment power is not found in the Constitution.

In addition, many Republican senators now running for reelection pledged, upon their word of honor, to apply the same principle to similar judicial nominations in the future.

That was then, and the future is now.

The current imperative supports precisely what was opposed in 2016.

No candidate likes being proven out of their own mouths (and often on tape) to be a liar, but the facts are what they are.

It is not something you want to have to explain and re-explain every day from now until election day.

Democrats have their own problems. President Trump and his Republican fellow travelers have the votes to push through a nomination, and there is not much the Dems can do about it. It cannot be argued that President Trump does not have the power that Democrats argued all presidents have or had – including President Obama.

The Democrats can wail and gnash their teeth, but in the absence of defections from a Republican majority not known for independent thinking, they cannot affect the ultimate outcome.

So there the two major parties sit. One has the power to do what it wants, but at significant political cost. The other can only fulminate about what they will do once they regain control of the Senate – many of which proposals involve the same norm-breaking strategies they excoriate their Republican colleagues for having been complicit in.

Everyone is locked into their positions. Deadlock.

Um, as we hark back to the Constitution, has anyone looked at Article II Section 2(3)?

It reads: “The President shall have Power to fill up all Vacancies that may happen during the recess of the Senate by granting Commissions which shall expire at the End of their next Session.”

This clause was first used by that radical firebrand George Washington in 1795, when he appointed a chief justice to the United States Supreme Court by way of a “recess appointment.” It has been used by presidents to fill judicial appointments as recently as George W. Bush.

Without getting into the weeds, and there are a lot of weeds, it would appear that if the House (Democrat) and the Senate (Republican) could agree upon a recess in excess of 10 days, it could clear the way for President Trump to make a temporary recess appointment that would be effective into the beginning of 2021.

Republican incumbents would avoid being pilloried for their questionable about-face. Since President Trump expects to win reelection and maintain a Senate majority, the appointment could become permanent when the new Senate takes office in 2021.

And what do the Democrats get out of it?

Since they also expect to win at least the presidency, they have something they do not have now, the possibility of a newly installed Democrat president withdrawing the nomination and removing President Trump’s nominee from the bench and then nominating his own choice for the slot.

Should a Republican-controlled Senate refuse to act upon his nomination by reverting to their stance in the Garland case, the position would remain vacant.

A 4-4 split is better than a 6-3 shellacking every time a case near and dear to Democrat hearts comes before the Supremes.

Again, a lot of weeds that would require a constitutional scholar to work through, but at least on the surface, it looks like it could be done to the benefit of both parties – and without inflicting more damage on the Constitution itself, which should be the most important thing.

Again, as the Stones noted more than 50 years ago, “You can’t always get what you want, but if you try sometimes, well, you might find you get what you need.”

Ken Ferries is an adjunct professor at Ivy Tech Community College and served as Kokomo city attorney for 25 years.


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