Jackie Gingrich Cushman / October 15, 2020

Better Off

The Senate is controlled by Republicans at this time. Barrett should be confirmed.

You might think that, so close to election time, everyone would understand how our government works. Evidently, that’s not correct — or people are pretending not to know, because they are afraid they won’t get the outcome they want.

Let’s start with the presidential race. The media focuses on national polls. But the popular vote does not determine the outcome of the presidential election. The final tally from the Electoral College does. It takes 270 Electoral College votes to win. Four years ago, Donald Trump won 304. Then-Democratic nominee Hillary Clinton knew exactly how the presidential election works, as do Democratic nominee Joe Biden and his team. The talk of national polls allows the Democrats to focus on the news that is good for them, even if it does not reflect the potential election outcome.

Now, let’s talk about the filling of the Supreme Court seat. It is the sitting president’s responsibility to nominate someone to fill any vacant Supreme Court seat. It does not matter who used to fill the seat, which does not belong to a particular party and is part of the third branch of government, the judicial branch. The president nominates, and the Senate votes on the confirmation.

This has happened 19 times in our nation’s history during the last year of a president’s term; in 16 of those times, the nominee was confirmed. Seventeen of them were confirmed by Senates controlled by the same party as the president; two were confirmed by Senates controlled by the opposite party.

That’s how the process constitutionally works. The president nominates; the Senate confirms. That’s the way it works.

Now let’s take the nomination of Judge Merrick Garland by then-President Barack Obama in March 2016, the last year of his term. The Senate was controlled by Republicans. He was not confirmed. That’s what happens more often than not when the president belongs to one party and the Senate is controlled by a different party.

This week saw the beginning of the Senate confirmation hearings for Judge Amy Coney Barrett. Many senators used more of their allotted time to present soliloquies than to ask questions. Often, their comments appeared to have been crafted more for use in social media postings than to elicit a response from the judge.

At one point on Tuesday, Barrett was asked to show her notes. She held up an empty notepad. This was in contrast to the binders of notes compiled by staff and used by many senators.

Barrett was intelligent, poised and knowledgeable and made clear that her approach would be to “faithfully apply the law” and noted during the session that she would “leave the policymaking up to you.” Though she studied under former Supreme Court Justice Antonin Scalia, Barrett reinforced that she is her own person. “You’re getting Justice Barrett, not Justice Scalia,” she said.

Barrett didn’t answer hypothetical questions (good advice for anyone answering questions), and she recounted why former Chief Justice John Marshall used to wear a simple black robe, as all justices do now. “Justice is blind,” she said. “We all dress the same. Once we put on the black robe, we are standing united symbolically, speaking in the name of the law, not speaking for ourselves as individuals.”

Unfortunately, many Democratic senators did not seem to understand that there could be a difference between a person’s personal beliefs and his or her approach to legal questions as a judge. When it comes to “the enterprise of judging,” Barrett said she would approach it “with no bias or hostility.”

As the Senate is controlled by Republicans at this time, Barrett should be confirmed.

The election season is coming to an end, and many undecided voters are having to answer the question of whom to vote for. Tuesday, WKRC of Cincinnati reporter Kyle Inskeep asked Biden: “Gallup reported last week 56% of Americans said that they were better off today than they were four years ago — that would have been under the Obama-Biden administration. So why should people who feel they are better off today, under the Trump administration, vote for you?”

Biden responded, “Well, if they think that, they probably shouldn’t.” He then caught himself and added that Trump is “a president who doesn’t share the values of most Americans.”

Usually, voters vote for incumbents if they are better off than they were four years prior (President Ronald Reagan used the “Morning in America” ad to reinforce this for his reelection). Biden wants people to believe that the outcome they are experiencing (better off today than four years ago) should be ignored, because it needs to be ignored to get him elected.

However, it’s up to the voters to answer the question.


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