My first thought upon learning of the death of Justice Ruth Bader Ginsburg was probably like many others’: Damn, that sumbidg gets another appointment!
Conversation immediately turned to the late point in Trump’s term, and Mitch McConnell’s refusal to hold hearings on Barack Obama’s appointment of Merrick Garland in the last year of his term, with 11-months remaining. With an election looming, McConnell argued, the American people should pick the president who will make the appointment; to act otherwise, McConnell claimed, would be an offense against the Constitutional intent.
Now, of course, he intends to ram-through whomever Trump appoints, and he has forgotten his “principled objection” to Obama’s appointment. This is incandescent hypocrisy, to be sure, but McConnell is a low and filthy character by even Congressional standards; and Republicans legislators, who are mostly whores and scared to death of a base that is salivating at the prospect of an anti-Roe justice, will follow his lead.
I regret that, according to the Supreme Court itself, Trump certainly does have the right to make a late-term appointment — McConnell to the contrary when the question concerned the president of the other party. Though Marbury vs. Madison is mostly remembered today because the case decision asserted the right of the Supreme Court to review Congressional actions, the fact is that the Court has addressed the issue at hand.
Adams had lost the U.S. presidential election of 1800 to Jefferson, and in March 1801, just two days before his term as president ended, Adams appointed several dozen Federalist Party supporters to new circuit judge and justice of the peace positions in an attempt to frustrate Jefferson and his supporters in the Democratic-Republican Party. The U.S. Senate quickly confirmed Adams’s appointments, but upon Adams’ departure and Jefferson’s inauguration a few of the new judges’ commissions still had not been delivered. Jefferson believed the commissions were void because they had not been delivered in time, and instructed his new Secretary of State, James Madison, not to deliver them. One of the men whose commissions had not been delivered in time was William Marbury, a Maryland businessman who had been a strong supporter of Adams and the Federalists. In late 1801, after Madison had repeatedly refused to deliver his commission, Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.
In an opinion written by Chief Justice John Marshall, the Court held firstly that Madison’s refusal to deliver Marbury’s commission was illegal, and secondly that it was normally proper for a court in such situations to order the government official in question to deliver the commission.
The court found other grounds for denying the commission, but upheld the midnight appointments.
A good case may be made for a Constitutional amendment settling this question once for all, and I would favor a cutoff; no appointment after the end of the full-term preceding an election, say (~ 6-months). But the only thing to prevent an appointment now is Republican embarrassment at their party’s hypocrisy, which is to say there is no barrier at all.