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Filling the SCOTUS Seat Isn’t an Option, It’s an Obligation
With Ruth Bader Ginsburg’s death and a newly vacant Supreme Court seat, the political madness of 2020 got even madder. But this moment is precisely why so many Republicans voted for Donald Trump despite their misgivings. A conservative majority on SCOTUS has been a signature goal of the party base going back to Ronald Reagan’s presidency. Now, 40 years later, the opportunity is finally here.
To quote Margaret Thatcher, this is no time to go wobbly. As expected, many are.
The center-right’s appetite for catering to the Democrat base instead of their own is insatiable. In reaction, GOP voters launched the Tea Party movement. When that fizzled, they elected Trump. Many Republicans still haven’t learned this lesson and want to surrender before any battle begins.
At The Bulwark, Jonathan V. Last oddly casts this moment as a “political crisis,” which it most certainly is not. Justice Ginsburg’s passing is a sad event, as is anyone’s death, but it was as inevitable as every other Supreme Court vacancy. We’ve been through this more than 100 times before.
Yet Last believes RBG’s mortality is an unexpected “black swan” event. His solution is to toss aside the simple Constitutional process and replace it with a complex backroom deal:
There are only a handful of ways out of this trap and all of them require the prudential coordination of elites. Which is … not something we have seen a great deal of in the last, say, generation of American life.
Nearly zero voters, left or right, want to be governed by the “prudential coordination of elites.” In fact, the Constitution doesn’t mention “prudential,” “coordination,” or “elites.” It does state that the President is obligated to nominate a jurist and the Senate to provide advice and consent.
Why invent some novel aristocratic contraption when our foundational document provides a simple path forward? These are the rules every elected official — left, right, and center — agreed to uphold since our founding.
One expects knocking knees at The Bulwark, but the demand for some extraconstitutional haggling is spreading.
Jonah Goldberg and David French, two conservatives for whom I have great respect, recommend a different type of deal with Senate Democrats. I’ll let French explain:
First, Trump makes his pick.
Second, the Senate applies the Schumer principle and gives the nominee a hearing. This will have the benefit of giving the American people a more-complete picture of the qualifications and philosophy of the nominee and thus the stakes of the presidential election.
Third, the Senate then applies the Graham/Rubio/Cruz rule and does not vote before the election. If Trump wins, they then vote on the nominee.
But what if Trump loses? What principle comes into play? Joe Biden’s own words provide the guide.
In the October 2019 Democratic debate, Joe Biden clearly expressed his opposition to court-packing. “I’m not prepared to go on and try to pack the court,” he said, “because we’ll live to rue that day.” He continued, “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
Goldberg, offering similar advice, adds some context in his LA Times column:
Even before Justice Ginsburg’s demise, Democratic support was building not just for packing the Supreme Court by increasing the number of justices (which Ginsburg opposed), but also for D.C. and Puerto Rican statehood and abolition of the legislative filibuster. Now Democrats are all but vowing to go through with expanding the court in response to a rushed replacement for Ginsburg.
What will be the GOP’s argument against such schemes?
…Moreover, merely on the level of realpolitik, abandoning all considerations other than what you can get away with amounts to preemptive disarmament for the wars to come. The pernicious logic of apocalyptic politics works on the assumption that the long term doesn’t matter. But the long term always becomes now eventually.
Making a too-clever-by-half deal instead of simply following the Constitution is also a type of “preemptive disarmament for the wars to come.” The GOP has the White House and the Senate, while the Democrats have nothing. If the Packers are leading 42-3, they don’t give two touchdowns to the Vikings if they promise to be nice to them in the next game.
Any deal is especially suspect given the Senate Democrats’ abysmal track record on upholding the slightest of norms. A party willing to portray the dullest nominee in SCOTUS history as a high-school drug lord and gang-rapist has no interest in comity or fair play.
French and Goldberg’s deal is better than Last’s but still attempts to solve a problem that doesn’t exist. Trump and McConnell hold all the cards; the left has only screaming.
Democrats high and low have already promised to pack the court, create new states, and abolish the electoral college. They have allowed their constituents to create mayhem, attack citizens, destroy businesses, and burn buildings in their cities for three and a half months. This is who they were before RBG died and they will only radicalize further as we move toward the election.
The Republican base has set everything in place for a conservative Supreme Court. It is the party’s obligation to deliver it to them.
Forget “prudential coordination of elites,” it’s time at last for “We the People.”
Published in Law, Politics
Drink!
I know of no Democrats who pine for Trump, yet wearing t-shirts saying “Republicans for Biden” I have gotten lots of positive responses from Republicans.
In 2016, Trump won Arizona by only 3%. Trump was able to hold 94% of Republican votes in 2016, many of whom were hoping that Trump would grow up in the process. He hasn’t. If the Republican rate of voting drops to only 85% Trump loses Arizona.
Arizona recently shifted from “Toss Up” to “Lean Biden.”
Maybe not on Twitter.
In policy, he’s grown up. Better deregulation and judges than I would have expected from nearly any GOP President.
Trump has fired all of the adults who could have constrained him. He completely blew COVID-19. No.
No doubt. What will these Republicans do when the Harris / AOC caucus bans fracking? (Don’t worry how, the Commerce Clause will cover it.) Will these Arizona Republicans for Biden give a thought to the suddenly-dessicated economies of fracking towns?
When the regulatory apparatus of the EPA spins up again and starts targeting small businesses, can our family expect the Arizona Republicans for Biden to caravan up to North Dakota and protest, or do a GoFundme for the driver who had to be laid off because the new regulations and taxes reduced train traffic by 20%?
Did Arizona have a lot of riot damage? I don’t know. I know we had a lot here, and Harris tweeted out a request for people to donate to the bail fund of those arrested for burning down my city. One of the people bailed out by the fund celebrated his freedom by braining a small business owner. Put him in the hospital. I tend to think the Reagan ideal supports the guy who’s running a business, not the miscreant who tries to take the fruit of his labors. But hey, it’s all topsy turvy now, I guess.
This is like battered wife syndrome; better not ever do anything to upset the Dems or they might go berserk and it would be all our fault.
In the words of President Trump, “We will not negotiate with terrorists.”
I seem to recall the original estimates for ‘rona deaths being somewhere in the millions, so I’d say that being below that by some 90 percent is pretty good, even assuming that every death that they claim is attributable to it is.
I also seem to recall Democrat leaders who said that banning flights from China among other things were unnecessary, racist and probably also sexist.
I also recognize that federalism allows states to make their own decisions as to the best way to deal with it, and that some states with Democrat governance are undoubtedly trying to a) see what they can get away with and b) try and make Trump look bad.
Last, I notice that if Trump had tried to circumvent those governors he would be a lot closer to actually being the authoritarian you claim he is, but apparently it’d be fine in that case.
That, or it really doesn’t matter and whatever he did would be wrong.
That’s my bet.
After Kavanaugh debacle, am not especially concerned about anything the Democrats are whining about. Same goes for Goldberg, French, Don Lemon, Michael Moore, Bill Maher, or any NeverTrump Archie Bunker.
RBG got in after 42 days, with a Republican-controlled Senate?
The norms are clear. The people who voted in ’16 and ’18 have spoken.
They evidently have the votes, confirmed today. Let everybody rant for a few more days and then fill the seat.
You’ve lost me. What did he do exactly that was so bad–in particular, that was so much worse than what all the petty lockdown tyrants did, or the Noble Liars who told us not to use masks?
But James, haven’t you heard? Orange Man Bad!
By lumping in Jonah Goldberg, David French, Richard Epstein and me with Don Lemon, Michael Moore and Bill Maher, you are coming close to Godwin’s Law.
That is beneath you, and it stops as opposed to expands conversations.
This is a ridiculous accusation.
The only step he could take that would not violate states’ rights was to close the incoming tourist and student and business traffic from China. He did that, all the while the Democrats were challenging him in the courts and accusing him (yet again!) of racism.
When I read in the Democratic Party Platform the appalling accusations against Trump’s handling of the pandemic, I thought they were so far-fetched that no sane person would fall for it. I guess I was wrong. Apparently many people have done just that.
I believe the Democrats will remember that at a time of great fear and uncertainty, President Trump did the only thing he could: he sent them some money–some of their own tax dollars that they had sent to Washington when they were doing well financially. He used the power of the federal government to have the car manufacturers switch over to making ventilators when he was told the hospitals needed them. He encouraged other companies to switch to making personal protective equipment for healthcare workers.
On a personal level, looking around his desk to see what he himself could do to help people over those long months, he did everything he could.
What most impressed me was that he steadfastly refused to use this crisis to enrich the federal government with more power and instead insisted that the power to regulate public health matters be handled where they are best administered–at the state level. He did this even while watching the tremendous economy that he had fired up over the preceding three years start to crumble. And because of his executive leadership, the country did keep going. Productivity stayed high during the entire winter and spring. The stock market didn’t die. The military continued to function. That was his job. To keep the ship afloat during the storm. He did that.
Some day President Trump will be rightly honored for the things he could have done but didn’t.
That’s character and self-discipline, by the way–what you do for others that you don’t have to do (return their tax dollars) and what you don’t do to them that you could (take over their personal lives).
I remember a former President frequently reminding us “elections have consequences.”
We elected Republicans for this reason. If they do not appoint someone now, they fail the voters who put them there. (Not for the first time, obviously.)
Senate Republicans: If you won’t use the power we give you, why should we give it to you? The GOP going wobbly and bowing to the Democrats wishes all the time is precisely the reason so many Republican voters loathe the Republican party.
Do what you were elected to do!
As a Biden voter, this should make you happy. Why are you complaining?
Also, J.V. Last is a shrieking ninny. I nominate him for the “Jen Rubin Achievement Award for Escalating Hysteria in Punditry.”
I guess you missed the question I posed on the first page of the comments, so I’ll ask it again — Gary, do you believe Chuck Schumer (and Nancy Pelosi) will more honorable in keeping their word to Donald Trump and Mitch McConnell is 2020 than George Mitchell (and Tom Foley) were in 1990 to George H.W. Bush and Bob Dole, when they convinced Bush to go back on his “No new taxes” pledge in exchange for Democrats’ promise to cut the federal budget, which Mitchell never followed through on?
So what you’re saying is that Lemon, Moore and Maher are Nazis? I thought that accusing the Democrats of being Nazis was something we weren’t supposed to do.
I repeat: who are you to say that? I mean you’re over here calling people Nazis, so where do you get off telling people what they aren’t supposed to do?
We may not like Lemon, Moore and Maher, but that’s no reason to insult them.
Joe Biden’s teleprompter encourages violence and looting. Let’s elect his tele….I mean Joe Biden so that the real president can be BLM, AOC and the Secretary of Looters Nancy Pelosi. Yeah, that’s the ticket.
I am not complaining. As a “Republican for Biden” supporter, I am pointing out that Arizona will likely vote for a Democrat for only the second time during my life. (I was born in 1952.)
With all due respect, coming from you that is high praise indeed!
Oh, now … see there? Just when you figure you have someone pegged …
I take everything bad I’ve ever said about Romney. Wait, that would be intemperate. I’ll take back one bad thing, but in the spirit of promoting amity I’ll let him pick which one.
I believe that Joe Biden would keep his word.
Under the David French proposal, there would be hearings in the Senate Judiciary Committee, but the vote would not occur before the election. Biden would promise that if he won, and the Republicans would not vote on the nomination, then Biden would veto any effort to expand the Supreme Court.
If Biden made that promise I would believe him.
The author might has well included AOC, Bernie Sanders and Ilhan Omar. C’mon man. This is like saying that because David Duke supports Trump, and is a racist, that anyone who doesn’t denounce David Duke is running with racists. I don’t believe that for a minute.
With Romney on board, this will happen. I would have bet the other way. This should also serve to shore up any other wobbly Senators.
Despite my best efforts, the Senate Republicans are moving forward. I believe that this will be a pyrrhic victory.
A pyrrhic victory? Why? Because we will lose the full-throated support of Jeff Flake going forward?
No. My governor blew things by getting drunk on emergency power authorities. The Michigan governor blew things. The California governor blew things. The New York governor really blew things, yet somehow has a fawning press holding him aloft as a model to follow.
Donald Trump, the supposed literal Hitler, authoritarian, left decisions to the state governors. Andrew Klavan stated numerous times this summer that Trump should be commended for not expanding the federal government’s power during this crisis.
If we lose the Senate, lose the filibuster, have DC and Puerto Rico become states, and face a 11 or 13 member Supreme Court, that would clearly be a Pyrrhic victory.