by John P. Flannery

Trump believes he can’t win this election.

He may be wrong — but he believes it.

Recent events including the polls and fund raising for Biden suggest that he’s right.

Trump has therefore assumed the worst, and attacked the fairness of the election with spurious claims about mail in ballots.

Trump has been looking for that ace in the hole, and set upon the judicial nomination of Judge Amy Barrett.

Normally, such a nomination invokes the discretion of the U.S. Senate to advise and consent on a nominee.

But Trump has insisted, dictated really, to this ever compliant Republican Caucus to do what Trump demands.

In the past, a super-majority voted upon a judicial nominee to the Supreme Court. This meant that Senators had to compromise, put aside partisan differences, to take a longer view of the nominee that they then jointly approved.

Leader McConnell has, however, made a bare majority vote sufficient.

Trump wants a Supreme Court nominee in time to sit on the imminent ACA argument, scheduled to be heard a week after the November election. and therefore to overturn what Trump prefers to call Obamacare.

A fair question is what kind of an associate justice does a nominee make who would allow herself to be complicit in this political Kabuki theater on the Hill.

There are a variety of ways to scrutinize this pre-determined process but I suggest that the most authoritative is what the founders meant by the U.S. Constitution.

As Judge Barrett identifies herself as an originalist, I wish any Senator had asked her about how the conduct of the President and her own conduct comported with the Constitution.

We have Madison’s notes and the Federalist Papers he wrote that were circulated among the various states to persuade them to support the Constitution.

Madison wrote some pertinent cautionary remarks in the Federalist Papers, in №47, insisting that it was a first principle of this Constitution, that the several departments, legislative, executive, and judiciary, needed to be kept “separate and distinct,” independent one from the other. Madison insisted this was an “essential precaution in favor of liberty.”

Madison knew this still young nation distrusted the prerogatives of a kingly government; they’d rebelled against King George III.

The articles of Confederation had been too weak but the founders including Madison didn’t want a government that would be too strong.

These three departments must be balanced, in equipoise, Madison stated, so that these “essential parts [the various departments] of the edifice” avoided “the danger of being crushed by the disproportionate weight of other parts [other departments].”

Madison wrote that this young country must guard against: “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, [for then the result] may justly be pronounced the very definition of tyranny (underscoring supplied.”

Some of our daily pundits have spoken of “tyranny,” but without drilling down to consider what the founders meant.

Trump usurped the power of the Congress as a separate Department, and we’re talking about both sides of Capitol Hill.

The Republican Senators exposed themselves as invertebrates, entirely subservient to Trump, so much so, they agreed to vote for a judicial nominee before they knew who it was. Talk about fealty.

Trump told all who would listen that this Judicial nominee would give him a personal advantage in the election, first, to reverse Roe v. Wade, second, to participate in the ACA appeal, and help get it declared unconstitutional, and, third, to give Trump a leg up should he need a vote on the Court to challenge the results of the election — if he lost.

Madison wrote, “Were the federal Constitution, therefore, really chargeable with this accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further argument would be necessary to inspire a universal reprobation of the system.”

Relying on no less than Montesquieu, Madison wrote, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

But that’s what Trump has achieved.

More precisely, Madison wrote, “[I]f the power of judging be not separated from the legislative and executive power,” freedom is at risk.

Montesquieu said, “When the legislative and executive powers are united in the same person or body, there can be no liberty because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.”

The nomination of Judge Barrett was tyrannical not because he didn’t have the power to appoint or nominate her but because the appointment was to serve his political ends, even to help him cheat in the election, and thus we have an abuse of the power.

In №51, Madison said, “[I]t is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

The most elementary notion of “due process,” or of fundamental fairness, is that a person may not be a judge in his own case.

Mr. Trump may not properly appoint a judicial nominee to favor him personally.

Madison wrote that “[i]t is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices.”

Madison noted, “If men were angels, no government would be necessary.”

Trump is no angel and he has dominated and usurped the Congress almost completely, destroying any division between the legislative department (in the Senate) and the executive.

Otherwise, Trump blurs the division between the executive and the judicial department.

This tyrannical abuse will continue should Mr. Trump be re-elected. Hopefully that’s a bridge too far for the nation.

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