When I was a young attorney, just beginning as a prosecutor, I asked Judge Kitty Curtis to revoke the pre-trial bond of a bad guy so he would sit in jail awaiting his trial. Because all of the evidence showed this person to be a bad guy, I assumed the judge would summarily grant my request. Instead, upon hearing my arguments, Judge Curtis looked at me and said, “Ms. Fisher, please tell me what portion of the law compels the court to do what you are requesting.” And there I was, flat-footed, having never considered the need to consult the law when the “right thing to do” was so obvious. Judge Curtis then swiftly and sternly taught me to never again enter court without both evidence and the law supporting my position. Predictably, Judge Curtis knew the applicable law and the bad guy went to jail, but for a legally sound reason: the law required it when the evidence was applied.
We now have an opening on the United States Supreme Court, just over a month before a hotly contested election. In 2016, for nine months the Republican Senate blocked President Barack Obama’s appointment to the Supreme Court when Justice Scalia died. The compelling argument made by the Republicans was that seating a new Justice in an election year was unseemly and “the people should decide” by voting for a president of their favored judicial persuasion. Yet, at the time, all polls had Hillary Clinton leading Donald Trump, and no one in the Senate really saw a path to victory for Trump. More likely, the Republican Senate was just using every angle possible to delay a vote on a justice nominated by a Democratic president. The Democrats screeched like mashed cats. And the Republicans held out long enough for the (unexpected) changing of the guard in the executive branch.
Now, Republicans have taken up the Democrat talking points of 2016. And the Democrats are parroting the mantra of the 2016 Republicans. With the exception of those senators who maintain their 2016 opinions today, both parties are hypocrites with compelling arguments. In the face of compelling arguments on both sides, perhaps we should do as Judge Curtis advised me 15 years ago: consult the law. That law is the Constitution, which states: “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court …” No exceptions for election year vacancies are present, and no discretion in performing the task at an arbitrary “right time” exists. Amidst the political rancor and toxicity, for our republic to survive, the reliably consistent Constitution must guide us.
Tammi Fisher is an attorney and former mayor of Kalispell.
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