NITPICKERS AND CHERRY-PICKERS

Outside of the environment, the most lasting damage Donald Trump and his chief toady, Mitch McConnell, have inflicted on the American public are appointments to the Federal judiciary, now numbering nearly 200, and especially the Supreme Court appointments of Neil Gorsuch and Brett Kavanaugh and possibly others before his presidency is over. Supreme Court justices have an impact on society that lasts for decades, long after the presidents who appointed them have become relics of the distant past.
And make no mistake about it: Trump and McConnell want to cram as many conservative judges as they possibly can onto the benches of Federal appellate courts before they lose the power. McConnell is urging aging conservative judges to retire now so that their replacements can continue to shove decisions to the far right well into the future and thereby limiting the opportunities for Democratic administrations to appoint liberal or more centrist jurists when they hold the power. McConnell even went so far as to block President Obama’s nomination of Merrick Garland, a political moderate, arguing untruthfully there was a tradition that no Supreme Court justice had ever been confirmed by the Senate during a president’s last year in office. Now that Trump may be serving his last year in office, McConnell has unabashedly said he would have no qualms about recommending the Republican-held Senate confirm a late nomination for the high court, should a vacancy occur.
Conservatives already hold a 5-4 majority on the Supreme Court for the first time in U.S. history. The Republicans want to stack the court even more to ensure their political agenda remains viable far into the 21st Century.
Appointing judges “is the most important thing we have done for this country,” McConnell has stated, and they “will interpret the plain meaning of our laws and our Constitution according to how they were written.”
All five of those current conservative Supreme Court justices are, or have been, members of the Federalist Society, which was founded nearly 40 years ago by students attending law schools at Yale, Harvard, and the University of Chicago. Twenty-five of the first 30 appellate appointments under Trump went to members or former members of the Federalist Society, the stated aim of which is “founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
Society members embrace the philosophy of “originalism,” which means that the words in the Constitution of the United States should be adhered to exactly as they were written and are not subject to modern interpretation, revision, or amending. Originalists don’t look for loopholes in the document, arguing that we can do nothing more than the Founding Fathers stated we are specifically allowed to do, even though it does not spell out what we cannot do.
In his book “A Republic, If You Can Keep It,” Neil Gorsuch rhetorically asked if there was ever a reason to “only sometimes adhere to the original meaning of the Constitution?” His answer to himself was: “I can think of none.”
Originalism predates the Federalist Society. At his confirmation hearings in 1967, Thurgood Marshall was asked if the role of the Supreme Court should be “simply to ascertain and give effect to the intent of the framers.” Marshall said yes, but added a caveat “with the understanding that the Constitution was meant to be a living document.”
The late Supreme Court Justice Antonin Scalia, also a member of the Federalist Society, maintained that only “an idiot” would regard the Constitution as a “living organism” until belatedly seeing the light and repudiating that stance shortly before his death in 2016.
When Roe v. Wade was upheld by the Supreme Court in 1972 – with five of the seven consenting justices Republican administration appointees and a Democratic appointee one of the two dissenters – Robert Bork argued the majority erred in its decision because it legitimized a right to privacy that could be found nowhere “in the Constitution by any standard method of interpretation.” (Bork, an avowed opponent of civil rights legislation and an advocate of expanding the executive power of presidents, would be denied confirmation as a Supreme Court justice by a Democratic-controlled Senate in 1987 after being nominated by Ronald Reagan.)
But the nitpicking originalists and Federal Society members are hypocrites. They are not the strict Constitutionalists they pretend to be. They’re cherry-pickers, arguing against amendments and laws they don’t like and championing post-Constitution amendments and laws that fit their political views, such as the right to bear arms. That’s the Second Amendment in the Bill of Rights, by the way. Their arguments that the Constitution as originally written is perfect and sacrosanct, that it is not up to us to guess what the Founding Fathers might have been thinking beyond the words they wrote, and the Federalist Society’s assertion that the “duty of the judiciary to say what the law is, not what it should be” is pure hooey.
Supreme Court Justice Samuel Alito even admits he cherry-picks when it comes to interpreting the Constitution and characterizes himself as a “practical originalist.”
The fact is the Founding Fathers recognized almost immediately that the Constitution as originally written was flawed, which was why the Bill of Rights with the first 10 Amendments were added barely a year after the document had been ratified. If the Federalist Society was sincere in its creed, then the Second Amendment and all 27 amendments are unconstitutional. Supreme Court Justice Clarence Thomas, an originalist and the descendant of slaves, should resign because slaves were declared to be property and not citizens. He would never have been in a position to be appointed to the Supreme Court in the first place.
It is obvious the Founding Fathers, who could not have imagined what the modern world would be like more than 230 years later, were not strict originalists themselves and by adding the Bill of Rights were tacitly conceding the Constitution should be elastic to keep in step with the changing times.
If the Constitution in its original form were strictly adhered to, this would not be the United States of America.
This would be Iran.

(An article in the March 1, 2020 edition of the New York Times Magazine was used as a primary source for this essay.)