Faith in the Face of Bad Faith

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Shortly after the death of Supreme Court Justice Antonin Scalia, very shortly after, when Senate Majority Leader Mitch McConnell (R-KY) decided that the Senate would not consider a replacement nominated by President Barack Obama, he not only demonstrated bad faith, but he also showed that he does not function out of a duty to the Constitution of the United States. Worse, to cover up his naked disregard for the Constitution and his disregard for good faith understood as fair play, he used words from a speech given by Joe Biden when he was in the senate taken out of context to craft a fig-leaf, some non-existent something called the Biden Rule.
According to McConnell’s lie, the Biden Rule says that the Senate ought not to consider a Supreme Court nominee in an election year. McConnell said “the people” ought to decide who would make the next pick. Clearly McConnell and his invertebrate GOP minions in the Senate who lied then and continue to lie now, who are participants in a theft of a Supreme Court seat, have forgotten that we live in the age of fact checking, that there is video tape that allows us to see what Biden actually said.
First, according to PolitiFacts, the context of Biden’s remarks was very different. When Biden spoke about this in 1992, there was no vacancy on the Court. Biden made his remarks thinking of the toxic political climate at the time and suggested that if a vacancy were to occur, that the process ought to wait until after the election. Second, there was no recommendation that President Bush the elder not fill the vacancy. Biden spoke about compromise in the event that Bill Clinton won the election. (
Beyond the lies that McConnell told about the so-called Biden Rule, some people want to say that McConnell’s move to end the filibuster rule for Supreme Court nominations is the next logical step from the action taken by Senate Majority Leader Harry Reid in 2013 to end the filibuster for nominations to the federal judiciary below the Supreme Court. This again is an analysis that does not consider the context.
Some of us do not live in the United States of Amnesia. We remember 2013 and before that. We remember the 2009 inauguration night conspiracy where Republican leaders of Congress met at dinner to conspire to obstruct EVERYTHING President Obama would propose. This while President and Mrs. Obama were dancing at the various inauguration balls. This while the nation was facing the worst economic crisis since the Great Depression, while fighting two wars.
Mitch McConnell did not attend this dinner, but he announced that his primary goal was to make President Obama a one-term president, and the Republicans in the Senate did all they could to not only stop President Obama’s legislative efforts, but to stop his nominations for cabinet positions and for judgships. The unprecedented obstruction continued after President Obama won a second term. This is why Reid and the Democrats who were in the majority changed the rule.
When the Republicans won the majority in 2014, they had the numbers to take obstruction to its ultimate by refusing to allow President Obama’s nominee to the Supreme Court the respect of a hearing and a vote. During the 2016 election, more than one Republican senator spoke of refusing to give a hearing or a vote to anyone who Hillary Clinton would nominate if she were to win. For McConnell and the Republicans to talk about the nonexistent Biden Rule or to blame their obstruction on Harry Reid is disingenuous in the extreme. The refusal of the majority of one body to do its job was probably unthinkable to the founders.
So, McConnell is a liar and a thief. He and his colleagues failed to honor the Constitution that they are sworn to defend. Here is the oath of office for United States senators:
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.” (
Regarding nominations to the Court, the Constitution says in Article II Section 2 describing presidential powers:
“. . . and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” (
There is nothing here about an exception for an election year. The people voiced their preference during the previous election, and the president’s term is four years.
The Democrats ought not to adopt McConnell’s anti-Constitutional stance. To think that by asking that the nomination wait until after the election will somehow shame McConnell and the GOP is fantastical. The Republicans in Congress have demonstrated no integrity. They are a shameless bunch. There is no honor among these thieves. And, history is watching and will remember.
The Preamble to the Constitution speaks about the establishment of justice as the first purpose of a more perfect union. There are varying kinds of justice, one of which is commutative justice. It is the justice of contractual obligations. It presupposes that people who enter into contracts will do so in good faith. This means an honest intent. McConnell and the Republicans in the Senate did not act in good faith during the Obama administration, and they are not acting in good faith now. They are not acting for the good of the country or out of their duty to the Constitution. They are acting for the good of their right-wing base. They are acting out of a bad will.
The philosopher Immanuel Kant, writing in his treatise “Groundwork on the Metaphysics of Morals”, thinks that a good will is good in itself and is its own end. Duty allows us to see the existence of a good will. To whom or to what does McConnell and the Republicans demonstrate a duty? Certainly not to the Constitution or to the nation.
Kant’s moral reasoning led him to the Categorical Imperative, the maxim that says: “Act only according to that maxim whereby you can at the same time will that it become a universal law.” Does McConnell and the Republicans in the Senate want lying and thieving to become a universal law? Will they refuse President Trump a hearing and a vote for a nominee to the Supreme Court if there is an opening in 2020? This is very doubtful to say the very least.
Now it seems that McConnell’s lies and his theft have worked. A president, elected by a minority of Americans who bothered to vote in the 2016 election, has already filled the vacancy left by the death of Justice Scalia. A man who a majority of We the People did not want as our president has appointed more federal judges in his first year in office than any other president in the history of the United States. With the retirement of Justice Kennedy, a minority president whose Electoral College win was helped along by a foreign government, Russia, who is under investigation for possible conspiracy with Russia, will have another opportunity to place a right-wing jurist on the Court. This person could very well vote on whether or not this president can face a Grand Jury or whether or not he has the power to pardon himself from various crimes. This person could swing the Court hard right for several decades to come. Women’s reproductive health, LGBTQIA rights, voting rights, and more are in jeopardy.
These are bleak days for democracy. How can we maintain our faith in ourselves as a nation, even our faith in God, when we see injustice ruling? Martin Luther King, Jr. often quoted a passage from a poem -“The Present Crisis” – by James Russell Lowell, an abolitionist writing before the Civil War:
“Truth forever on the scaffold, wrong forever on the throne
Yet, that scaffold sways the future and beyond the dim unknown,
Standeth God within the shadow, Keeping watch above his own.”
God is the mystery. God is the order in chaos, the justice in injustice, the hope in hopelessness, the sense in nonsense, the comfort in grief, the smile inside a tear, the blessed assurance that everything will be alright. It is our faith that is as the Apostle Paul wrote; “the substance of things hoped for, the evidence of things not seen.”
I believe. I trust and believe that We the People will vote in record numbers in November and hold the Republicans accountable for their thieving lies, for their bad faith, for their unwillingness to do their duty to the Constitution. The Democrats in the Senate may not be able to stop the next Trump pick from taking a seat on the Court, but We the People are the ultimate check on both Trump and the GOP.
We cannot afford to be discouraged. Our country is at stake. We have a duty to keep the faith and to VOTE!
Valerie Elverton Dixon is founder of and author of “Just Peace Theory Book One: Spiritual Morality, Radial Love and the Public Conversation”.