VCC Magazine Fall-Winter 20-21

V irginia C apitol C onnections , F all 2020/W inter 2021 7 See If It’s Not Broke, Don’t Fix it, continued on page 8 NRV Putting Passengers A Broad-based Regional Initiative For more information, visit www.nrvpassengerrail.org • Enabling future economic development opportunities • Promoting safer, more efficient travel on the I-81 corridor Passenger train travel to the New River Valley, one of Virginia’s fastest-growing regions Safe, Efficient and Convenient Passenger Rail for a Fast-Growing Region NewRiver Valley RA I L 2 0 2 0 Putting Passengers On Track If It’s Not Broke, Don’t Fix it By Mark Rush The appointment of Amy Coney Barrett to theU.S. SupremeCourtmarked the second of two contentious appointments (the other was the appointment of Brett Kavanaugh) under the Trump administration. If one counts the non-appointment of Merrick Garland (and subsequent appointment of Neil Gorsuch), then the United States has experienced three appointment battles in a row that have been at best politically divisive and, at worst, a disappointing manifestation of the septic depths to which partisanship and polarization have plunged the country. There was a time when nominees as different in their philosophies as Antonin Scalia and Ruth Bader Ginsburg could be confirmed unanimously. Alas, since the demise of Robert Bork’s nomination under President Reagan, Supreme Court appointments have been increasingly partisan and divisive and focused more on the agendas of the members of the Senate judiciary committee than on the qualifications of the nominees. As a result of Barrett’s appointment, cries have gone out to expand the size of the Supreme Court, limit its terms, and limit the number of appointments any given president could make. In addition, others have called for statehood for Washington, D.C. and Puerto Rico—clearly in hopes of their adding to the Democrats’ representation in Congress. Unsurprisingly, these cries have come from frustrated Democrats who decry the dominance of Republican appointments in recent years. This is and remains another manifestation of the “presentism” that infects contemporary political debate. For whatever reason, our leaders, pundits and “influencers” have no sense of history and therefore cannot place contemporary politics in any meaningful perspective. This is as clear with complaints about the Electoral College as it is with those about the Supreme Court appointments process. Both have a long history of working effectively as part of a constitutional architecture that is designed to limit democracy and place constraints on majorities (or frustrated minorities) that might take over and change that same constitutional system to suit their needs. If some Democrats are good to their word, then the independence of the US Supreme Court now hangs in the balance of the Georgia Senate elections. If the Democrats gain control of the Senate, they will have control of the presidency and both houses of Congress. This would give them the potential power to remake the size and length of terms of the Supreme Court. This would be disastrous. Critics contend that this would be nothing less than recalibrating a court that is out of balance due to the fact that Republican presidents have appointed the overwhelming majority of the last 20 justices. In their frustration, critics contend that the Supreme Court has now been “packed.” This is, at best, a misunderstanding of terminology and history. At worst, it is outright dishonesty. Franklin D. Roosevelt proposed to expand the size of the Supreme Court so that he could add new members who would be sympathetic to the New Deal administration’s attempt to expand federal power to jumpstart the economy that had been reeling since the Depression. Even FDR’s supporters criticized this attempt to pack the Court. Fortunately, one member of the court—(a different) Justice Roberts—changed his mind and the court began upholding New Deal legislation. Roosevelt did appoint eight Supreme Court justices. Despite the fact that those justices had their disagreements, the court took on a much more liberal tone than it had in the first thirty years of the 20th century. This was not court-packing. It was simply the smooth working of the constitutional system. The machinations of Sen. Mitch McConnell at the end of the Obama presidency were blatantly partisan and a break from so many Senate norms of collegiality and