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Archive for December, 2016

For the past ten months following Justice Antonin Scalia’s death, the Supreme Court has been at eight members. The Republicans refused to even hold a hearing for Judge Merrick Garland, President Obama’s nominee. Now that the election is over, Garland’s nomination appears dead and the Republicans are eagerly awaiting President-elect Trump’s new choice for the ninth position. But Trump should actually consider making three nominations and calling for Congress to authorize and appropriate funding for eleven spots on the bench.

Mr. Trump should look at this action for three reasons.  First, it would give the Democrats something. Two of the nominations could be Republicans – one a red meat conservative pleasing the right, the other a moderate conservative. The third, could be an olive branch the Democrats – Merrick Garland himself. Republican opposition to Garland was never about Garland himself. He is a distinguished, moderately liberal, well-respected jurist that Senate Republicans had previously said they could support.

Second, it gives Trump something – the appearance as a powerful reformer not beholden to the way things have been done in the past. There would be predictable accusations of Czar Trump court-packing a la FDR, but that criticism is misplaced and could be handled, especially if one of the three nominees is Garland. First, FDR sought to add six justices, and it was clearly for ideological reasons. In this case, Trump would be looking to add just two, and if one was Garland, the ideological complaint falls apart. Instead of a 5-4 advantage, the justices would have a 6-5 advantage.

Third, it acknowledges and deals with the fact that this is an increasingly diverse country, and that for such a heterogeneous populace, nine members may not be enough. There are more than 300 million people in this country of all races, ethnicities, religious beliefs and ideological leanings. Yet look at our court. Racially, the court is six non-Hispanic whites, one Hispanic white, one black, no East Asians, no South Asians, no Arabs, no Slavs, etc. Religiously, it is five Catholics (three practicing/two cultural), and three Jews (two practicing/one cultural), no mainline Protestants, no evangelical Protestants, no Muslims, no Hindus, no open agnostics, deists or atheists (although there has been some indication there may be one or more quiet ones.) Educationally, four justices graduated Harvard Law School, three graduated Yale, one graduated Columbia, none graduated Stanford, Northwestern, Duke, Virginia or any of the other eight elite law schools, not to mention any of the other 300 law schools. There is a lack of diversity in life experience in the justices.

For these reasons – extending an olive branch to the Democrats, doing something clearly bold for his legacy and compensating for the increased diversity of the electorate – President-elect Trump should look at making three nominations to the Supreme Court.  Yes, some will justifiably express concern about increased cost, but that cost (a few offices, a handful of clerks, a tighter fit around the table, etc.) is modest and can be offset by cuts in less important parts of the government.  Few parts of the federal government are more important than the highest-level of its third branch.  Some will also, unjustifiably say this is unconstitutional.  However, tradition and statute, not the Constitution, have fixed the number of justices on the Supreme Court, and those can be changed more easily.  By giving both sides something and preparing the Court to serve an increasingly diverse and complex populace, President-elect Trump can make a bold step toward healing the political wounds opened by Justice Scalia’s untimely passing.

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On December 5, 1931, the Russian Orthodox Cathedral of the Savior was destroyed on the orders of Soviet Premier Jozef Stalin. The idea was that a “palace” or museum in honor of socialism would be constructed in its place – “reason” taking the place of “superstition”. The German invasion stopped Stalin’s construction of the museum, and it was never restarted.

Those of us concerned about the decline of the church in the West can take some solace in this episode. Stalin overtly attempted to destroy the church in his country and to depress it throughout Eastern Europe. In the end, some who saw the destruction of the cathedral as children would live to see the end of not only Stalinism but Communism itself, with all its attendant religious persecution.

And what sits in the spot of that old cathedral now? A new one.

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