Kicking over the constitutional traces

Alexander M. Bickel, the great constitutional law scholar and proponent of judicial restraint, noted at the time of the Watergate denouement that it would be difficult to keep a president from "kicking over the traces."  That phrase came to mind on reading the April 21 editorial in the New York Times, "Neil Gorsuch, and the State's Power to Kill."  Commenting on the Supreme Court's denial of a stay of execution for Ledell Lee, convicted in 1995 in Arkansas for murder, the article asserted that Justice Gorsuch "was sitting in a seat that by all rights should be occupied not but him but by President Barack Obama's doomed nominee, Merrick Garland."

Apparently, for the Times, any person nominated to the Supreme Court of the United States by the former president is, by right, entitled to sit on the high court.  And to heck with the Constitution's appointments clause, which provides, in Article II, Section 2, that the president "shall nominate and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court[.]"

In the Ledell Lee matter, the Supreme Court's action permitted the execution to proceed, with five of the nine justices, including Justice Gorsuch, ruling against the stay of execution.  For the Times, the execution of Ledell Lee is "a travesty."

Had Justice Gorsuch joined the four liberal justices on the Supreme Court to stay Ledell's execution, would the Times have applauded the ruling without questioning the right of Justice Gorsuch to be on the Court?  It is not far-fetched, I think, to imagine that the Times might well have commended the Supreme Court for preventing "a travesty" while adding, "And by the way, although he joined the liberal justices, Justice Gorsuch is sitting in a seat that by all rights should be occupied by Judge Merrick Garland, President Obama's nominee."

That is to say, if Associate Justice Neil Gorsuch is sitting in a seat that "by all rights" belongs to another nominee, the way he rules is irrelevant.  How could the Times explain this position other than by denying to the United States Senate its constitutional role in Supreme Court appointments?  Apparently, the Senate was obligated to hold hearings on the Garland nomination and, thereafter, to vote in favor of Garland.  This approach would confer imperial power on the president.  But then the Times had little difficulty with the idea that the former president should have plenary power.  (See, e.g., the Times' November 20, 2014 editorial [November 19, online], "At Long Last, Immigration Action," applauding Obama for having "given up waiting for Congress to act" on immigration and proceeding by way of executive power.)

Republicans would do well to consider that for the left, President Trump is not the only illegitimate official in Washington.  The April 22 Times editorial challenging the right of Justice Gorsuch to be on the Supreme Court signals that for the left, any individual is illegitimate who holds office consequent to the appointment of President Trump.  Indeed, Republicans would do well to realize that it is the intention of the left, on regaining power, to kick over the traces of constitutional government and replace this form of governance with the form brought to Russia, just 100 years ago, by Lenin – that is, government to the people by the elite few – and we "deplorables" be damned.