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About That Vacancy…
Now that the coronavirus crisis is essentially over but for the continuing economic disaster being wrought by various governors and power-drunk state officials, we could do with yet another catastrophe to keep the press enthused through the end of this election year.
The passing this week of Justice Ginsburg will do just fine.
Let me explain why it is right, proper, and essential that the Court be restored to a full complement of nine members prior to the election.
GARLAND v (UNKNOWN)
You’ll hear endless babble about the way Senator McConnell handled the Garland nomination, President Obama’s lame-duck nomination that McConnell refused to allow to be voted on by the Senate. People will say it’s hypocritical of the Senate to vote now when it failed to vote on Obama’s nomination. They’ll argue that it’s a breach of trust with the American people, etc., etc.
That’s all wrong, and here’s why.
It isn’t hypocrisy to treat the two situations differently because the two situations are in fact different. Obama was a lame duck in his last year in office, filling a vacancy (Justice Scalia’s) created in that last year in office, and opposed by a Senate the electorate had handed to the Republicans. Never in U.S. history has the Senate confirmed a Supreme Court nomination in such circumstances; Senator McConnell wisely chose not to preside over the first Senate to do so.
In contrast, the President and the Senate are of the same party. If the Democrats had taken the Senate in 2018, it would be perfectly reasonable for them to block the President’s next nomination; I would expect nothing less (though I’d hope they didn’t stoop to the character assassination they displayed during the Kavanaugh confirmation). But the American people left the Senate in Republican hands, and I hope that Senate will support the President as he makes yet another excellent appointment.
BUT THE CONSTITUTION!
So ignore the hypocrisy claim. And absolutely scoff at anyone who pretends that there are actually constitutional barriers to a speedy appointment: that’s simply wrong. As an iconic Supreme Court Justice once observed, “there’s nothing in the Constitution that says the President stops being President in his last year.” (In fact, that was Justice Ginsburg herself.) Similarly, there is nothing in the Constitution that says the Senate stops being the Senate in an election year. There are no legal nor Constitutional barriers to a speedy nomination and confirmation.
LAST WISHES
There’s a particularly troubling claim you’ll hear, which is that Justice Ginsburg, in her final days, said the following: “My most fervent wish is that I will not be replaced until a new president is installed.”
Let me be very clear. I will say nothing ill of the late Justice, and I applaud her tenacity and strength during what must have been extraordinarily difficult times. It is my hope that she didn’t in fact say what has been attributed to her, because the idea that she would have is repugnant to me and would diminish her in my eyes.
Filling a seat on the Supreme Court is a high honor, a position of service to the American people granted with great ceremony and enormous trust. But the seat is not the property of its occupant to be assigned by him or her to the next candidate, and the late Justice has no more right to determine who occupies it next than I have. I would like to believe that Justice Ginsburg appreciated the dignity of the court and its unique role to uphold the Constitution, and wouldn’t try to subvert the Constitutional provisions for peopling the Court by attempting to impose her own political vision upon her successor. That would be a kind of betrayal — though, in fairness, perhaps one forgivable in an old and critically ill woman.
WHY IT’S NECESSARY
There is no legal, Constitutional, procedural, or moral reason not to quickly confirm a new Supreme Court Justice. There are two practical reasons why it is extraordinarily important that we do appoint a new Supreme Court Justice as quickly as possible.
First, and most importantly, there is already ample reason to expect the 2020 election to be legally challenged regardless of outcome. The Democratic candidate himself has spoken openly, and strangely, of having the support of the military in the event that the election doesn’t appear to go in his favor. Secretary Clinton is on record as advising Vice President Biden that he should not concede, regardless of the electoral outcome. Given this, it is hard to see how a Trump victory will not be challenged in court.
Left-leaning and Democratic think tanks have been “war-gaming” (simulating) various scenarios for challenging the 2020 election results. The most widely published account finds only one electoral outcome that does not lead to widespread violence and/or a Constitutional crisis, and that is a landslide Democratic victory. Every other outcome leads to chaos.
Add to this the left’s enthusiasm for mail-in voting, which is inherently less secure than in-person voting and so more susceptible to challenge, and we have been put on notice: if the Democratic candidate doesn’t win, we should expect a Constitutional crisis.
We will need a Supreme Court with an odd number of justices present. A hung Court unable to resolve a contested outcome of the 2020 election will leave the country in a precarious and dangerous condition: for the first time in history, the transition of power will be uncertain.
That possibility alone demands that we restore the Court to nine members before the election. A failure to do so will be inexcusably reckless, endangering the world’s greatest democracy and its uninterrupted tradition of peaceful transition of power.
The second reason that it is essential that we fill the court is that there are those who fear widespread civil unrest and violence if the Senate does act quickly.
There’s a word for that, for the threat of violence if a particular political demand is not delivered. It’s called terrorism. The United States should not submit to the demands of terrorists, whether they’re foreign or domestic. Anyone who argues that the Senate must not act for fear of triggering a violent backlash is calling for the appeasement and rewarding of domestic terrorists.
To hell with that. We don’t surrender our Constitution because one side isn’t willing to lose with grace. Congressmen are about as spineless a species as one will find, but when given the choice of answering to the mob or answering to the Constitution they’d best not find it a hard decision to make.
ONE LAST THING
Those reasons are more than enough, but there’s one more practical consideration. President Trump has made hundreds of very good judicial appointments. There’s every reason to believe that his next Supreme Court nomination will also be very good. There’s every reason to believe that a Democratic nomination will not be good at all.
People are confused about what “conservative” means when we’re speaking of the Supreme Court. “Conservative” and “liberal” when it comes to the Supreme Court is a bit like “firefighter” and “arsonist” when it comes to house fires. The purpose of the Supreme Court is to interpret and uphold the Constitution. Its purpose isn’t to rewrite the Constitution, to reinvent the Constitution, or to “fix” the Constitution. It isn’t to burn the Constitution down.
“Conservative,” in the context of the Supreme Court, means pro-Constitution. Everyone who values Constitutional governance should support conservative Justices.
Published in Politics
Great post, Hank. I agree with everything that you say.
This is a great line.
Never go full agreement, Jerry.
Also, G-d willing, Trump is NOT in his final months in office as Obama was. His nominating authority is a duty in his continuing tenure.
This is excellent. May I please publish it on my blog, RushBabe49.com with attribution?
Always. And thank you.
Published, thank you.
He said it better than I could.
One more thing. I lost some respect for RGB, because show chose not to retire when her health was clearly failing. She should have retired years ago.
Thanks Henry for putting your finger on so many pieces.
This quote particularly sounds so phoney to me. Her most fervent wish, surrounded, as the news reports tell us, by generations of family, is so political? I can’t picture it.
This is really the essence of the issue, and will be the means to distinguish those who are constitutionally informed from those who are not. Justices take the bench with the advise and consent of the Senate. Garland never surmounted that barrier, and it’s important to recognize that “advise and consent” does not require that an up or down vote be conducted.
Forget logic. McConnell should say, “We were in charge then, and there was no way we were going to put Garland in office. Had Hillary won, we would have let the court dwindle down to zero members until a Republican was back in the White House. As for now, we’re still in charge, and we’re going to fill the seat with the President’s nominee before the election. Stick it, Schumer . . .”
I’d love him to say that. Oh, my goodness how I would love that….
Mitch could totally pull that off. He has no chin to speak of, but he can act like a boss….
Is this on the main feed yet? I want to send it to all my relatives and friends.
Kay, until it is, you can find it at rushbabe49.com. ;)
Kay, send all your friends over to my blog, please!
These are, in fact, the bases of The Biden Rule.
In fact she said the opposite, publicly, in 2016. As did Sotomayor, I believe in the same setting.
Another difference is that in 2016, then-candidate Trump announced the type of judicial candidate he would nominate and provided voters with information to make the judiciary a campaign issue on which the voters could choose. Today the Democrats have not provided to the voters any information about the judicial candidates the Democrats would nominate, so the judiciary is not a campaign issue on which the voters can make an informed choice. Since the voters are not making a choice on the judiciary, there is no reason to wait for the election.
I forwarded your e-mail to about 10 people. Hopefully, they will read it and not just delete it. My computer isn’t giving me an option to send an e-mail. It updated itself and my option to post a message vanished. Don’t know how to get it back.
There’s a group here–“Computer Discussion, Help and Ideas.” You might get some assistance there with a bit more info on the problem.
Let’s talk about the law of unintended consequences. In November 2013, Harry Reid used the nuclear option to stop filibusters for appointments, other than the Supreme Court. In 2017, Mitch McConnell expanded that to the Supreme Court and has been busy ramming through federal judges, which is a good thing in my view.
I predict that if Mitch forces a confirmation vote the following three things will happen.
First, Trump will be defeated. The strongest reason to keep Trump was to replace Ginsberg on the Supreme Court, and Breyer is a spry 82 year old.
Second, Senate hypocrites like Lindsey Graham, and Steve Daines will be defeated. Their pious words in 2016 will be thrown in their faces repeatedly and justifiably. Act Blue received over $100 million in donations after McConnell made his play.
Third, the Dems will use the nuclear option on the legislative filibuster. The Supreme Court will be expanded to 11 justices, and DC and Puerto Rico will become new states. The Dems will also increase the Federal Judiciary by 30% as happened when Jimmy Carter was President.
Mark my words, this will be the largest miscalculation since Harry Reid nuked the filibuster on appointments back in 2014.
What about the Pious words of all the Democrat Senators (and RBG herself!) who said in 2016 that the nomination should go through?
“Wise Latina” Sotomayor said the same thing too, I believe at the same event as RBG.
There’s no “forcing” about it unless one is into Democratic talking points. The Senate has every right to consider a nominee.
There are numerous reasons to re-elect Trump given the fact the Democratic Party is bat-expletive crazy and Trump’s opponent has serious “issues.” Those against moving a nomination forward are already committed ideologues who wouldn’t vote for Trump anyway.
Doing the correct, and constitutionally permissible thing, is not a “miscalculation.” I agree that it will bring out the authoritarian instincts already apparent in the Democratic Party, and that they may try to game a long-established system. But you don’t let those in the wrong call the shots.
Now some rank punditry! My prediction is that Trump nominates Barbara Lagoa of the 11th Circuit for three reasons. First, she is a Cuban American. Second, she is from Florida. Third, ACB wrote an excellent opinion about due process rights of accused men in campus disciplinary hearings, but there would not be enough time to address unfair attacks by Democrats and feminists. This is not fair to ACB. But life is not fair.
Why is Florida significant? If Trump wins Florida and Pennsylvania, while losing Arizona, Michigan and Wisconsin, all he has to do is carry ME-2 and NE-2 to force a 269-269 tie. Under the 12th Amendment, each state delegation gets only one vote, but there are likely more Republican Delegations. If Trump’s victory in 2016 was an “inside straight” this would be the equivalent of an even less likely card hand.
I recommend the website “270 to win” which lets you create your own scenario.
My prediction? Biden wins Arizona, Florida, Michigan, Pennsylvania and Wisconsin, while losing North Carolina to win 319-219.
I don’t particularly think any rationalization is warranted as to whether a SCOTUS pick is voted in before or after the election. He who controls the Senate makes the decision in their interest. A Republican Senate did not think it in their interest to vote Obama’s pick four years ago. A Republican Senate thinks it is in its interest to pick for Trump now. If the Dems controlled the Senate in either circumstance, they would be going with their interest. That’s the bottom dollar. That’s the bottom line. Anything else is grandstanding.
Gary, as you’ve already declared yourself my political rival, I can’t imagine why I would want to take advice from you.
No, your prediction was a Klobuchar-Buttegieg win, and we are – or at least I am – holding you to it.
Or, consider that The Biden Rule was in force in 2016, but isn’t now. I wouldn’t hesitate to use their own words – especially Biden’s own words – against them.
Plus of course both Sotomayor and RBG saying “go ahead” in 2016.
I don’t see us as rivals, but as friends who disagree.
Let’s see what happens after a fractious confirmation. Is DC and Puerto Rica statehood, an expanded Supreme Court, and the death of the legislative filibuster worth the confirmation of ACB or Barbara Lagoa? I don’t think so.
Maybe not, but you seem to believe that defeating Trump is.