You Can’t Have It Both Ways

Posted on February 16, 2016 in Justice

DR - Blog Post - You can't have it both ways
By Judge Edward J. Lamport

Dennis Ricci has graciously allowed me to take over his blog. I’m Edward Lamport, the lead character in his novel, Perilous Judgment, coming May 17.

The late Supreme Court Justice Antonin Scalia had the greatest single influence on the development of my legal career and my views on the Constitution and the role of the federal judiciary. I believe he would not be pleased with what is happening in the wake of his passing.

Political battle trenches have been dug deeply between the White House and the Senate. President Obama plans to nominate Justice Scalia’s replacement “in due time,” likely in the next thirty days if the pattern of his previous nominations holds.

Senator Mitch McConnell, the majority leader, has taken the position that the Supreme Court vacancy should not be filled until after the November presidential election. Senate leaders want to gamble that a Republican will win the White House and appoint a justice who will maintain the Court’s conservative balance.

The fact that leaving an empty seat in the Supreme Court for a full year is even a consideration tells us our leaders value partisan warfare over constitutional governance. The president’s term of office doesn’t end when the primary election season begins.

Both political parties are guilty of invoking the Constitution when it suits their political ambitions and otherwise disregarding it.


A building can’t stand on a pliable foundation. Neither will this great country of ours.


Abraham Lincoln once said, “No law is stronger than is the public sentiment where it is to be enforced.” Constitutional shortcutting in all branches of government is symptomatic of the problem I pointed out in my previous guest post last June: our must-have-it-now culture, fueled by can-have-it-now technology.

Abraham_Lincoln_November_1863I fear the American people have ceded much of their democratic privilege and responsibility to the power elites. Lincoln also said, “With public sentiment, nothing can fail. Without it, nothing can succeed.” I believe the extreme partisanship we see in Washington is quietly sanctioned—even championed—by our deeply divided citizenry.

Government leaders who ignore the Constitution to get what they want walk a path of fools. When they try to have it both ways, the snowballs of unintended consequences gather into an avalanche that can’t be stopped.

A building can’t stand on a pliable foundation. Neither will this great country of ours.


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