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George Will Is Supremely Wrong

The conservative George Will never wanted Donald Trump to become President.  Now he doesn’t want him to be reelected. For the good of the Country, he writes, he also wants Republicans to lose the House this Fall for failing to stand up to Trump.

In his Washington Post op/ed, Will writes that the Republican Congress has failed to properly exercise their Constitutional powers and prerogatives. They are weakening the Constitution, in his view. The remedy for that weakness, Will suggests, is to turn out Republicans in such numbers as to allow the Democrats to take control of the House.  Maybe then, he believes, Republicans will find their true course and protect the Constitution.

George Will’s election advice is wrong, however, and he is also wrong about this moment in time.

Will acknowledges that there will be those who point out the danger his strategy poses to the appointment of Judges.  Clearly though, he believes that concern is not of such measure as to outweigh his disdain for the current president and Republican leadership in Congress – and that is where Will, the Bushes and so many other Republicans and other “Establishment” types are so very wrong.

Not every constitutional moment in American history is ordinary.  There are times more legally significant than others. One of those occurred when Franklin Delano Roosevelt bullied the Supreme Court into accepting his New Deal, which the Supreme Court initially rejected as unconstitutional.

Roosevelt responded by threatening to pack the Court with compliant justices declaring that “We will no longer be permitted to sacrifice each generation in turn while the law catches up with life.”  In other words, the law, let alone the Constitution, was not going to get in the way of his imperial legislative plans.

History knows that Roosevelt got his way and the Supreme Court changed the Constitution -paving the way for the huge government expansion that is the current $4 trillion federal budget and our $20 trillion in debt.

Another huge moment for the Supreme Court came in 2016.  The balance of the Court was on the line.  The Court had four “social” justices (Breyer, Kagan, Sotomayor and Ginsburg) who believe in legislating from the bench – elevating social justice over constitutional law. There were two conservative justices in Thomas and Alito after the death of Antonin Scalia.  There also were two moderate justices in Kennedy (known as the swing vote) and Roberts (who voted to uphold Obamacare).

When Scalia was alive, the combination of justices produced a Court that, on controversial issues, was fairly balanced – producing 5-4 decisions one way or another. When he died, leaving a vacancy on the Court, the split was 4 – 4 on at least one important case.

History will regard the 2016 election as the election to fill that vacancy. Indeed, Republican Senate leader Mitch McConnell made it so.  McConnell refused to hold hearings on President Obama’s replacement pick for Scalia – an unusual historical moment in Supreme Court politics – and strong demonstration of Senatorial, not executive, prerogative.

If Hillary had won, or if Will and the Bushes et. al. had their way, Hillary would have replaced Scalia with another social justice or two or three.  The Court would have tilted to the Left for a generation or more and the Constitution would have been changed again – and no amount of intellectual will can deny that.

Hillary didn’t win and as a result, Neil Gorsuch sits on the Supreme Court. There could be other appointments  like him too – and this is where Will and the Bushes are so very wrong.

It is true Congress now and then abdicates certain power and defers to presidents. Imperial presidencies come and go however.  Congressional leaders come and go as well.  President Wilson gave way to Harding then Coolidge and Bob Michel became Newt Gingrich.

Not so for the Supreme Court.  The damage that would have been done to the Constitution by a Hillary presidency would not be replaced in any one or a dozen midterm elections.

On the other hand, Neil Gorsuch voted yes on the most important Supreme Court decision in generations – the Janus case.  That case heralds a sea change in American politics will occur.

Public employee unions, which spend billions of taxpayer money in elections and for lobbying for bigger government, just lost substantial spending power.  That decision holds the promise of slowing the massive growth in government – a danger of immense proportion when compared to any deference being shown to a sitting president.

That is really what is at stake as this constitutional moment – not the interplay President and Congress and that is why so many are wrong, including George Will.

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