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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
They did very, very well and were in the middle of it until South Carolina when the imperative was to stop Bernie Sanders. If Sanders had not been a factor, they could have gone much, much farther.
Meaning what, that if your prediction hadn’t been wrong, it would have been right?
Should Biden win and the Democrats take the Senate as you anticipate, the Democrats are going to attempt to do those things no matter what. Trump playing nice and leaving the seat empty for now is not going to change their actions even a little bit. I think they’ve made that pretty clear.
Gary,
You have been calling for a Democrat victory for months, if not years. So it rings a little hollow for you to be sounding the alarm about the danger of a Democrat victory now.
If this really concerns you, stop asking people to vote for them.
Hank
Going back on their 2016 statements after Scalia died will likely cause many Republican Senators to lose their re-election. Mitch McConnell, John Cornyn, Joni Ernst, Lindsey Graham, and Thom Tillis are all running for re-election this year, and all made public statements against considering the Garland nomination. See the article at the LA TImes at https://www.latimes.com/politics/story/2020-09-21/republicans-flip-flop-rbg-scotus-replacement This seeming hypocrisy could cause each of them to lose 5% of their vote, which would be fatal to Ernst, Graham and Tillis. Is this worth it?
Exactly!! And if we don’t nominate now, the Dems will create a bogeyman nominee that will motivate their base. Might as well nominate and vote one in now.
To be more accurate, I have been calling for Trump to be defeated, not for a Democratic victory.
Following are two more t-shirts that I gave out today to Republican Women, one saying “Republican Voters Against Trump” and one saying “Republicans for Biden.”
This is not the same situation as 2016. The Biden Rule is that you don’t have a supreme court nomination/vote in an election year, when the president and the senate are not of the same party. That was the case in 2016. It is not the case now. Also Wise Latina Sotomayor and RBG herself, disagree with you.
I think that Richard Epstein’s Post is required reading. https://ricochet.com/804363/trump-and-mcconnell-beware/
Prof. Epstein has forgotten more law than most of us will ever know. He’s out of his lane here and would likely acknowledge it. Someone in that thread astutely compared the fear-mongering on this issue to “negotiating with terrorists.”
That’s certainly a fair question And to be honest, I’m not 100% certain that it is. I can’t see the future; and oftentimes, things play out much differently than we think they will. However, if Trump and McConnell can get a solid conservative on the Supreme Court, then yes, I believe it will have been worth it. I don’t like the fact that I think that because I think that indicates that the Supreme Court has too much power. But that’s where things stand at the moment, so yes, I think it will have been worth it. Besides, if the roles were reversed, I absolutely believe the Democrats would work to fill the seat before the election. No amount of pleading and yelling from the Republicans would stop them.
True. I hadn’t thought about that possibility, but it would make sense from their perspective to do that.
Aw, Gary, come on now. Given the binary system we have (Republicans or Democrats), wanting Trump to be defeated and wanting a victory for the Democrats are basically the same thing. Yes, the motivations may be different, but both end the same – with the Democrats in the Oval Office.
Those that hold these Senators “accountable” for past comments would not have voted for them anyway.
People who are making a big deal about this (ahem) show a distinct aversion to recognizing that the circumstances are not different under the Constitution. It is perfectly acceptable to have not considered Garland because the Republicans controlled the Senate and also perfectly acceptable to vote on a Trump nominee because the Republicans control the Senate.
Those who are claiming “flip-flop” are simply spouting a talking point dictated by the Democrats. I’ve noted this two or three times here in response to Mr Robbins hand-wringing, but have, not unexpectedly, received no comment in return.
Almost always, it’s wiser to take a first-order win than to lose now and hope for a salutary second-order effect.
Fill the vacancy now. If we lose the White House in November, Harris will fill it. And if we lose both the White House and the Senate in November, Harris will govern unchecked by anything except the Supreme Court.
We need an insurance policy. Not like the policy the Obama-era Department of Justice had in mind, but rather one founded in a complete and robust Supreme Court. It’s entirely possible that, come November, the Supreme Court is all we have standing between the Constitution and a hard-left Democratic administration bent on transforming the country.
Fill the vacancy.
It has been a long time since we have had a Republican in the White House, January 20, 2009. (I don’t count Trump as being a Republican,) Clearing away the Trump disaster will allow for the election of a Republican in the future.
Mitch’s Test. His whole career is dirt without this vote.
All of these probably happen without getting the seat filled. Might as well fill it
Not just “because the Republicans controlled the Senate” but because the Senate and the President were different parties in 2016, but are the same party now. That is the foundation of The Biden Rule.
Or a Biden presidency will give Democrats the control they need to enact/do everything they’ve been threatening to for years, and we won’t recognize the country by the time the next election rolls around.
You are simply delusional if you sincerely believe that Joe Biden winning in November is a good thing for the Republican party.
Sad!
Short term pain, leading to long term gain. The end of Trumpism is essential for the Republican Party to be returned to the Party of Reagan.
Not so. Not so.
The death of Trumpism would be the death of America.
Your “long term” would cease to exist.
You can bend over and ask for a spanking, but I prefer to fight.
What specifically about Trump’s policies do you dislike?
For the sheer entertainment value of seeing heads explode left and right, I almost wish Trump would nominate Garland.
Maybe for his fourth nomination, when it might be less dangerous.
Although Democrats appear immune to concerns about inconsistencies, I am curious how Democrats plan to attack a woman nominee without antagonizing “suburban women,” many of whom will identify with a successful professional woman nominee.
Haven’t they done pretty well at convincing a lot of women – let alone men – that a conservative woman isn’t really a woman?
But it hasn’t been the Party of Reagan since 1988. It’s been the party of the Bushes. I don’t want a Party of Reagan, I want a party of Reagans. Donald Trump has been a rather weak executive, and it showed just how lazy Republicans were. We were a “settle for 60 percent” party for so long and a loyal opposition party for so long, we didn’t know how to govern or make policy when given control. Remember how on Day 1 we’d have a replacement for ACA? We didn’t. Remember how the media said we’d lose the House if we passed any policies for Trump to sign? We lost the House anyway. Ted Cruz didn’t want to fund government spending and our rank and file and “thought leaders” said he was being too confrontational.
I don’t want a Reagan because the Obama people fell into that trap of thinking there’s one charismatic guy to lead them to the promise land. I don’t need another Jesus. I need Republicans who are willing to live and die on Conservative ideas rather than think the House or Senate is a summer camp where everyone needs to be friends and if some Democrat is screaming bloody murder then it’s a problem with us and we want to keep our gym buddies happy.
I don’t care about your re-election prospects, I want you to put our policies to work
Compromise is a two way street. But our complacency and fear over governance is what Trump has provided an opportunity for, and it appears McConnell and not a lot of others got that memo.
Except Trump has been far more confrontational and willing to push at things, than any president since I suppose Reagan, and perhaps more than Reagan. Maybe not as confrontational as you or I would like, in absolute terms. But moreso than any other for decades.