If Donald Trump loses the election, he may have two GOP senators to thank for his loss.
Let me explain how that may happen.
On March 16, President Obama nominated D.C. Court of Appeals Chief Judge Merrick Garland to succeed the late Justice Antonin Scalia on the Supreme Court.
Since then, the Republican Senate leadership has refused to give the justice a hearing so that the full Senate can “advice and consent” to the nomination as called for in the Constitution.
The tradition of senators holding hearings for a presidential nomination has been the custom since America’s founding. It is specified in the Constitution.
Senate Majority Leader Mitch McConnell has decided that “the next president will make this nomination.” He and Judiciary Committee Chairman Chuck Grassley believe that a president loses his power to nominate justices during his final year in office, once a political campaign begins.
In 1997, Garland was confirmed for the Court of Appeals by the Senate 76-23 and has served with distinction ever since. Garland is a distinguished judge who has been praised by Chief Justice John Roberts, who served with him on the D.C. bench. Justice Ruth Bader Ginsburg has said, “There’s nothing in the Constitution that says the president stops being president in his last year.”
Judge Garland has dutifully met with GOP and Democratic senators, while enduring a wait that is now longer than that accorded to Justice Louis Brandeis, who waited 125 days to be confirmed. Appointed by Woodrow Wilson, his delay was directly attributable to anti-Semitism. (If confirmed, Garland will be the ninth Jewish justice in history, making four on the court now.)
With Scalia’s seat long unfilled, the Supreme Court is meeting with only eight members. Frequently decisions are split, 4-4. In such cases, rulings by the lower courts must stand. And as Shakespeare wrote in Hamlet, “There’s the rub!”
It apparently never dawned on GOP Sens. McConnell and Grassley that by blocking Obama’s nomination of Garland, they were creating a nightmare for the Republican Party in this year’s election.
We saw the result right here in North Carolina, when on Aug. 31 Justices Roberts, Kennedy, Alito and Thomas were unable to grant Gov. Pat McCrory’s request to block a 4th U.S. Circuit Court of Appeals ruling that threw out N.C. voter suppression laws passed by a reactionary Republican legislature in 2013. The Appeals Court ruled that the laws were discriminatory and “designed to target African-Americans with almost surgical precision.”
The result of having an undermanned Supreme Court means that North Carolina voters who will begin voting Oct. 20 won’t need voter ID. The North Carolina law was emulated by many state legislatures controlled by Republicans who wished to make it difficult for many of their citizens to vote. Now such laws in all states are subject to legal challenge. Similar laws in Texas and Wisconsin have already been rejected by federal courts.
It is bad news for Donald Trump that laws cynically enacted to ensure the election of a Republican president are now null and void.
The flaw in crude GOP attempts to suppress voting throughout the country was that it was based on false claims of rampant voter fraud. That could never be proved. In one case, Indiana’s photo ID law barred 12 South Bend nuns from voting in 2008’s Democratic primary election because they had no photo IDs. The law had been passed to deter voter fraud, even though the legislators who passed the law knew there was no record of serious voter fraud.
In Texas, opponents of its suppression laws cited a study showing that a million of the states’ 13.5 million registered voters did not have a photo ID. Texas investigated voter fraud from 2002 to 2012 and brought only 311 accusations. Fifty-seven cases were resolved, including only two cases of voter impersonation. More than 8 million votes were cast in the last Texas presidential election.
Some states also reduced the number of polling places and the number of days and hours allowed voters to cast ballots. In Georgia, wait times of from two to 10 hours were reported at multiple voting locations. In Florida, a law passed barred voter-registration activities of distinguished groups like the League of Women Voters.
This would still be going on except for one startling fact. A Supreme Court that would have accepted all of this voter suppression had Scalia been alive is unable to support it now because it was one member short when it came time to vote on the issue.
Would Garland have voted with the GOP-appointed judges had he been on the court? We’ll never know.
McConnell and Grassley’s plot to cripple the Supreme Court has boomeranged on them. As long as 4-4 tie votes occur, all rulings by lower courts outlawing voter suppression will stand. Republican candidates may pay dearly for their cynical act this November, and Mr. Trump may not get to appoint judges with the judicial philosophy of Clarence Thomas and Antonin Scalia, as he has promised to do. Poetic justice!
Paul R. Dunn lives in Pinehurst. Contact him at firstname.lastname@example.org.