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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
I think it’s because the Senate will have done what it was elected to do. Can’t have that.
Who is this guy and what has been done to or with Mittens?
https://www.msn.com/en-us/news/politics/romney-supports-holding-a-vote-on-next-supreme-court-nominee/ar-BB19iVJN?ocid=msedgdhp
Says the man whose support for any given candidate is contingent on how “Trumpy” they are.
You might want to talk to Harry Reid about the law of unintended consequences, after going nuclear in November 2013 to confirm three Judges to the DC Circuit.
I believe that you meant to say “Non-Trumpy.”
Likely? I assumed that a “Republican for Biden” would be voting for Biden. Why call yourself a “Republican for Biden” if you still aren’t sure?
Don’t believe it? You’ve used this smear countless times!
Please re-read what I said. I said that it was likely that “Arizona” will vote for a Democrat for only the second time since 1952.
Yes. And you said it better than I would have. The Never-Trump losers and cowards probably think Trump should ask the Democrats to review his proposals before he proceeds so as not to upset them.
As far as Trump needing to grow, I think the GOPe should follow Trump’s lead and grow a pair.
Please document your slur or withdraw it with an apology.
“The Never-Trump losers and cowards”? Thank you for elevating the level of discourse.
Perhaps French will explain in his new book, but why the worry about “disunion”? He appears to have lost the plot; the goal of our government should not be to “preserve the union,” it should be to preserve our liberties. Seems to me that another orginalist on SCOTUS would be a better way to preserve our liberties than to kowtow to the left.
And if “disunion” is necessary to preserve our liberties, I’m for it.
Okay, so you’re still a solid Biden voter, right? No going wobbly!
What else can be said about people who are afraid of fulfilling an obligation because it might upset the Democrats? That covers the term “cowards”.
BTW, Trump is President and his opponents are not. Objectively, they are “losers”.
You’re welcome.
You expect me to go back through all your posts? Sorry. No, I know what you’ve written. The whole point of saying “David Duke endorses Trump” (which you have done countless times), is to somehow connect Duke’s beliefs with Trump’s. David Duke also supports Ilhan Omar. What does that say? Do Trump and Omar believe the same things? This kind of criticism is silly. So no, I will not apologize. Rather, I expect you to apologize for using this smear and countless other smears, such as the Charlottesville lie that you continue to peddle. The Ukraine lie. The Russian collusion lie. The “200,000 COVID Deaths are Trump’s fault!” lie.
Every lie that the Democrats hand you, you willingly spread. And you expect us to believe you’re some kind of Reagan Republican? I didn’t just fall off the turnip truck.
Do you believe Kamala would keep Joe’s word, if Joe can’t make it all the way to 2025?
Joe Biden can’t even keep his word. Don’t expect Kamala to do it.
If your argument, as Romney’s has been, is that he’s not against conservatism, but just against Trump and his actions, you pretty much have to go this route, as opposed to the Bulwark-Lincoln Project route, where everything Trump touches must be opposed. Mitt still has an out, of course, if he decides Barrett, Lagoa or whoever else might be on the list is unqualified, but his action has still angered liberals (and possibly this guy, who wasn’t happy with the Kavanaugh defenders two years ago):
Half a league, half a league,
Half a league onward,
All in the valley of … you know … the thing
Rode the six hundred.
And then in 2022 the Democrats in Congress will be destroyed worse than they were in 2010 after they forced Obamacare through despite public opposition.
For real.
I seem to recall hearing January that we could expect a couple million dead from the virus.
If we’re at only 10% of that, we’ve done pretty well.
And how many of those 200,000 were the results of Democratic governors putting positive cases in nursing homes?
I don’t always trust my memory, but I think I heard an initial estimate from the usual suspects that it would take two to three years to develop a Covid-19 vaccine. Then came “Operation Warp Speed”. If there is a vaccine available in January, 2021, it is just short of a miracle. And it happened on Trump’s watch.
It’s been funny watching Trump-haters become anti-vaxxers because they refuse to take the “Trump vaccine!”
David French saying that because Joe Biden was against court packing (now it’s “no comment”) we should make a deal in writing with him is something.
Biden dropped out in 1988 because he was found to be a constant liar.
Agree. Harris was talking as though she really thought Trump mixed up the vaccine in the White House basement.
And that deal-making with Democrats always works out well, doesn’t it. Saint Reagan would certainly have something to say about whether Democrats keep their promises.
I think you miss use the word “norm”. The Senate holding off on Merrit Garland was the violation of the Norms. Never before had a Court appointment been held up simply because it was an election year.
https://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/
“Dear Bill,
“Your inner self is what you are. You have been living in denial and should probably accept who you are and admit it to yourself. But only yourself. Otherwise you won’t be allowed to occupy a ‘official Conservative’ spot in the media anymore. You would no longer be useful to the Democrat party.
“Yours because you’re ours,
“The Media”