THE NINTH JUSTICE

THIS WAS A PIECE I WROTE SHORTLY BEFORE THE 2016 ELECTION - I DID NOT POST IT THEN, FOR FEAR THAT SOME MIGHT READ IT AND USE THIS AS CATALYST FOR A VOTE FOR MR. TRUMP. AFTER THE ELECTION, IT SEEMED POINTLESS. TODAY IT SEEMS LIKE A DISTANT DREAM, NOW REPLACED BY THE SEAT STOLEN BY JUSTICE GORSUCH AND THE OPENING CREATED BY THE ANNOUNCED RETIREMENT OF JUSTICE KENNEDY

At 3:52 AM on November 9, 2016, the President-elect first posed the question to the President. He thanked her for her consideration but politely said he could never accept her offer. In the days that followed, that proposal was oft repeated. If the President changed his mind, it might well significantly alter the course of this country's destiny.

Donald Trump had run the most destructive campaign in memory, his unchecked ego, his uncontrollable behavior, creating a national backlash against the party that had elevated him. Not only was his defeat clear and convincing, but his impact on those below him on the ticket was severe. A Republican party that had seemed destined to retain control of the Senate BT( before Trump) was AT on the short side of 50. And with control of this body wrested from its hands, the worst Republican nightmare was staring them in the face.

Antonin Scalia went quail hunting in Shafter, Texas on the day of February 12, 2016. The next morning, at age 79, the conservative Justice of the Supreme Court was pronounced dead. And on the morning of November 9, 2016, three days shy of nine months from the day his seat on the bench went empty, it remained that way.

In the eight years of Republican obstructionism that marked, and marred, the two terms of the Obama administration, this might have been their most egregious and outrageous display.  "Advice and consent" was replaced by derisive dissent, as the Republican mantra was that the American people, by their ballots cast on November 8, 2016 would dictate the choice of Justice Scala's successor.

With Republican control of the Senate, the nomination of Merrick Garland was not even considered. All pretense of normal protocol was abrogated. The opening on the court was like an open wound for this nation, a festering sore that clearly demonstrated to the world that we were a country in existential crisis.

William Howard Taft was President of the United States from 1909 to 1913, ending his tenure in office just before World War I would begin. But his tenure in a position of power, able to shape the future of this country, did not end with the swearing in of his successor, Woodrow Wilson. From 1921 to 1930, William Howard Taft occupied a seat on the highest Court in this land.

Barack Hussein Obama was a former Constitutional law professor, eminently qualified by background temperament and intelligence to follow the precedent established by Taft.  With the turn over of Senate control to his party, he could well fill the void in the Court created by Republican refusal to follow tradition, protocol and the law of the land. It was a natural fit for the President and the ultimate retribution against a party that had made its central tenet the destruction of his presidency and his legacy.

Hillary Clinton had been eyewitness, from day one, to the ascension of Mr. Obama. She had seemingly been the chosen one, the next in line for her party for 2008. She had paid her dues, seen as intimately as anyone in this country how the system works, and appeared to have an unfettered path to the Democratic nomination. Until Barack Obama appeared, catapulted by his 2004 convention speech and captivating the nation with his speeches that soared. And when defeat came to Hillary Clinton, she assumed that her conqueror would politely acknowledge her good fight, wish her well, and leave her coffers empty.

But that is not what transpired as Ms. Clinton was appointed Secretary of State, serving as a high profile member of the Obama administration, taking her lumps in a time of great upheaval around much of the globe, but proving her mettle and improving her resume for her run in 2016. Hillary Clinton would not forget what Barack Obama had done for her career. Nor would she forget how badly the Republican party treated the President, and her. This was the moment to repay old debts and to settle old grievances.

As of the morning of November 9, 2016, this was a lame duck Congress, filling out the balance of their terms while awaiting (despite the protestations of Mr. Trump to the contrary) the peaceful transition of power a little more than two months hence. For the moment, the Republican party still retained a majority in the Senate. And thus the conversation began as to whether the nomination of Merrick Garland was to be withdrawn by the President or would be considered and acted upon before year's end.

Hillary Clinton was not inclined to do the Republican party any favors. Garland had clearly been a compromise candidate, with more conservative values and opinions then she might have favored, but one whom President Obama felt compelled to put before the Senate by virtue of the Republican control. But that impediment would soon disappear and, if the nomination were withdrawn, as of January 20, 2017, the axis of power would shift dramatically. And then the possibilities were endless. Including her former boss.

President Obama had wrestled with this question for months, sensing with Mr. Trump's bizarre and destructive propensities that power could be wrested from the hands of his opponents. He understood that the Supreme Court held enormous sway over the future of this democracy and that the person chosen might, for decades, set the course for where this nation was headed. He did not want to challenge the right of Ms. Clinton to shape a Court that she would find most acceptable. Still, Judge Garland was held in the highest esteem. He personally found him a compelling choice.

And so, the President was most conflicted by how best to proceed on the morning of November 9. And when the President elect raised the question to him as to whether he would agree to be nominated to fill Justice Scala's seat, he was not at all inclined to accept. This nation had been fractured for the full term of his presidency, much of the country deeply troubled by the elevation of a black man to the highest office in the land. And now, the woman most reviled by them, maybe even more so than the enmity they felt towards him, was his successor. Could the country possibly withstand these two both in power, the executive and judicial branches in large measure directed by public enemies 1 and 1a?

But Mr. Obama did feel that, despite eight years on the job, so much had been left undone. And he was as concerned as Ms. Clinton that the Supreme Court was filled with those whose contemplations for this country's future as closely as possible matched his own. And who better could assure this would occur? By his own elevation, he could continue to help his vision become reality. Not just for a few years. But for the balance of his life.

On November 18, 2016, Barack Obama withdrew the name of Merrick Garland from consideration before the Senate of the United States. In his statement, the President thanked Mr Garland for his continued exemplary service to this country and for his patience and understanding in waiting out what must have been an excruciating delay in whether he was to appear before the Senate for confirmation.

 "But I am constrained by the knowledge that I no longer stand before you as the person chosen to run this nation in the coming years. And I believe it now my duty and obligation to allow Hillary Clinton to choose that person she believes would best serve this country as the ninth justice on the Supreme Court. I fully  trust her capacity to choose wisely, the nation believes in Hillary Clinton, and we all await her determination. Thank you all, thank you Judge Garland and God bless America."