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
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  1. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    Bryan G. Stephens (View Comment):

    Gary Robbins (View Comment):

    Percival (View Comment):

    Gary Robbins (View Comment):

    Richard O’Shea (View Comment):

    Percival (View Comment):

    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.

    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?

    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.

    We? We?

    You are not part of “We”. You are part of them. You are a “Proud Republican voting for Biden”.

    Everything he does is on you. You are voting for him. You are supporting him. This is the fruit of your actions and your desires.

    The fruit of the poisonous tree?

    • #121
  2. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    Bryan G. Stephens (View Comment):

    Gary Robbins (View Comment):

    kedavis (View Comment):

    Percival (View Comment):

    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.

    Not so fast. That just says he’s willing to vote. I don’t see anything about HOW he’ll vote.

    You want Romney to commit to whoever Trump nominates? What if Trump nominates me?

    No danger of that.

    You are not a conservative.

    Sure I am!  I am a Reagan Republican.  We just happen to disagree about Trump.

    • #122
  3. DrewInWisconsin, Man of Constant Sorrow Member
    DrewInWisconsin, Man of Constant Sorrow
    @DrewInWisconsin

    Gary Robbins (View Comment):

    Bryan G. Stephens (View Comment):

    Gary Robbins (View Comment):

    kedavis (View Comment):

    Percival (View Comment):

    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.

    Not so fast. That just says he’s willing to vote. I don’t see anything about HOW he’ll vote.

    You want Romney to commit to whoever Trump nominates? What if Trump nominates me?

    No danger of that.

    You are not a conservative.

    Sure I am! I am a Reagan Republican. We just happen to disagree about Trump.

    If you’re voting for Biden, it’s clear we disagree about a lot more than that.

    • #123
  4. kedavis Coolidge
    kedavis
    @kedavis

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    Bryan G. Stephens (View Comment):

    Gary Robbins (View Comment):

    kedavis (View Comment):

    Percival (View Comment):

    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.

    Not so fast. That just says he’s willing to vote. I don’t see anything about HOW he’ll vote.

    You want Romney to commit to whoever Trump nominates? What if Trump nominates me?

    No danger of that.

    You are not a conservative.

    Sure I am! I am a Reagan Republican. We just happen to disagree about Trump.

    If you’re voting for Biden, it’s clear we disagree about a lot more than that.

    And it’s clear that he disagrees with Reagan, too.

    • #124
  5. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Gary Robbins (View Comment):

    Percival (View Comment):

    Gary Robbins (View Comment):

    Richard O’Shea (View Comment):

    Percival (View Comment):

    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.

    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?

    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.

    This is not a crazy argument based on long-term consequences. But we can’t be sure the Dems will do that now, and it’s not like they weren’t thinking about doing it anyway.  And if we’re going to speculate about the future, we can just as easily speculate that later the GOP will add 10 originalists to the Court in one go.

    And in any case the future is murky and “always in motion” like Yoda says. Gandalf is correct that “Even the very wise cannot see all ends.”

    And even if the Dems did all this it would be their fault, not Trump’s.

    I say do the right thing in this particular circumstance with minimal speculation about possible futures. Putting Lagoa/Barrett/Whomever on the Court now is well within Constitutional prerogatives for Trump and the Senate.  It does a lot to restore the rule of the written law.  Do it, say a prayer, and go home.

    • #125
  6. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Django (View Comment):

    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.

    Warp Speed! GIF | Gfycat

    Die, coronavirus, die!

    • #126
  7. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Jeff Hawkins (View Comment):

    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.

    Trump is an adulterer and a liar who lies about his adulteries.  (Or at least he used to be. Give us 5 years with no new stories breaking, and maybe we can reassess that. One is permitted to hope he is reformed. One is permitted to pray for his soul.)

    But then–plagiarizing Biden ain’t exactly a paragon of honesty.

    • #127
  8. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    • #128
  9. DrewInWisconsin, Man of Constant Sorrow Member
    DrewInWisconsin, Man of Constant Sorrow
    @DrewInWisconsin

    Saint Augustine (View Comment):

    Jeff Hawkins (View Comment):

    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.

    Trump is an adulterer and a liar who lies about his adulteries. (Or at least he used to be. Give us 5 years with no new stories breaking, and maybe we can reassess that. One is permitted to hope he is reformed. One is permitted to pray for his soul.)

    But then–plagiarizing Biden ain’t exactly a paragon of honesty.

    And Biden is still telling the same lies that resulted in him dropping out before.

    • #129
  10. DrewInWisconsin, Man of Constant Sorrow Member
    DrewInWisconsin, Man of Constant Sorrow
    @DrewInWisconsin

    Saint Augustine (View Comment):
    And in any case the future is murky and “always in motion” like Yoda says, and “Even the very wise cannot see all ends.”

    Uh, . . . Yoda? Oh, wait. Yoda said the first part, but I hope I don’t need to remind you who said the second.

    • #130
  11. Matt Balzer, Imperialist Claw Member
    Matt Balzer, Imperialist Claw
    @MattBalzer

    Gary Robbins (View Comment):

    Bryan G. Stephens (View Comment):

    Gary Robbins (View Comment):

    kedavis (View Comment):

    Percival (View Comment):

    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.

    Not so fast. That just says he’s willing to vote. I don’t see anything about HOW he’ll vote.

    You want Romney to commit to whoever Trump nominates? What if Trump nominates me?

    No danger of that.

    You are not a conservative.

    Sure I am! I am a Reagan Republican. We just happen to disagree about Trump.

    The more you say it the less I believe you.

    Edit for clarity: about the Reagan Republican part. I’m pretty sure the other part is true.

    • #131
  12. DrewInWisconsin, Man of Constant Sorrow Member
    DrewInWisconsin, Man of Constant Sorrow
    @DrewInWisconsin

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Same as I think of anything the Washington Post prints: hot garbage not fit to line birdcages. Chinese and Qatari disinformation outlet.

    • #132
  13. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Same as I think of anything the Washington Post prints: hot garbage not fit to line birdcages. Chinese and Qatari disinformation outlet.

    Israel’s Ambassador Abba Eban once said that the Palestinians never missed an opportunity to miss an opportunity.

    • #133
  14. DrewInWisconsin, Man of Constant Sorrow Member
    DrewInWisconsin, Man of Constant Sorrow
    @DrewInWisconsin

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Same as I think of anything the Washington Post prints: hot garbage not fit to line birdcages. Chinese and Qatari disinformation outlet.

    Israel’s Ambassador Abba Eban once said that the Palestinians never missed an opportunity to miss an opportunity.

    Okay, Mr. Non-sequitur.

    • #134
  15. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Ninja Cocaine Turtle Apex Predator Mitch.

    • #135
  16. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    DrewInWisconsin, Man of Consta… (View Comment):

    Saint Augustine (View Comment):
    And in any case the future is murky and “always in motion” like Yoda says, and “Even the very wise cannot see all ends.”

    Uh, . . . Yoda? Oh, wait. Yoda said the first part, but I hope I don’t need to remind you who said the second.

    Yeah, maybe I should rephrase so it doesn’t look like I’m attributing Gandalf’s finest to an inferior green philosopher.

    • #136
  17. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Same as I think of anything the Washington Post prints: hot garbage not fit to line birdcages. Chinese and Qatari disinformation outlet.

    Israel’s Ambassador Abba Eban once said that the Palestinians never missed an opportunity to miss an opportunity.

    Okay, Mr. Non-sequitur.

    My point is that when someone says something nice to you and/or your point of view, perhaps that would be an opportunity to celebrate what you have in common instead of staying on the attack.  

    • #137
  18. Matt Balzer, Imperialist Claw Member
    Matt Balzer, Imperialist Claw
    @MattBalzer

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Same as I think of anything the Washington Post prints: hot garbage not fit to line birdcages. Chinese and Qatari disinformation outlet.

    Israel’s Ambassador Abba Eban once said that the Palestinians never missed an opportunity to miss an opportunity.

    Okay, Mr. Non-sequitur.

    My point is that when someone says something nice to you and/or your point of view, perhaps that would be an opportunity to celebrate what you have in common instead of staying on the attack.

    That might be the case if I thought I had anything in common with the Post. 

    • #138
  19. DrewInWisconsin, Man of Constant Sorrow Member
    DrewInWisconsin, Man of Constant Sorrow
    @DrewInWisconsin

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Same as I think of anything the Washington Post prints: hot garbage not fit to line birdcages. Chinese and Qatari disinformation outlet.

    Israel’s Ambassador Abba Eban once said that the Palestinians never missed an opportunity to miss an opportunity.

    Okay, Mr. Non-sequitur.

    My point is that when someone says something nice to you and/or your point of view, perhaps that would be an opportunity to celebrate what you have in common instead of staying on the attack.

    What was the connotation of their statement? I doubt they meant “Apex Predator” in a good way. But I’m sure he’ll embrace it.

    He’ll always be “Murder Turtle” to me.

     

    • #139
  20. DrewInWisconsin, Man of Constant Sorrow Member
    DrewInWisconsin, Man of Constant Sorrow
    @DrewInWisconsin

    And I consider the Washington Post (and the New York Times and CNN and MSNBC) to be enemies of the United States. But the Washington Post is frequently the worst. Worster than CNN, even.

    • #140
  21. kedavis Coolidge
    kedavis
    @kedavis

    DrewInWisconsin, Man of Consta… (View Comment):

    And I consider the Washington Post (and the New York Times and CNN and MSNBC) to be enemies of the United States. But the Washington Post is frequently the worst. Worster than CNN, even.

    I know some people who love liverworster, but I could never stand it myself.

    • #141
  22. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Gary Robbins (View Comment):

    Bryan G. Stephens (View Comment):

    Gary Robbins (View Comment):

    kedavis (View Comment):

    Percival (View Comment):

    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.

    Not so fast. That just says he’s willing to vote. I don’t see anything about HOW he’ll vote.

    You want Romney to commit to whoever Trump nominates? What if Trump nominates me?

    No danger of that.

    You are not a conservative.

    Sure I am! I am a Reagan Republican. We just happen to disagree about Trump.

    You lie.

    You are voting for socialism. 

    • #142
  23. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    DrewInWisconsin, Man of Consta… (View Comment):

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Same as I think of anything the Washington Post prints: hot garbage not fit to line birdcages. Chinese and Qatari disinformation outlet.

    Israel’s Ambassador Abba Eban once said that the Palestinians never missed an opportunity to miss an opportunity.

    Okay, Mr. Non-sequitur.

    My point is that when someone says something nice to you and/or your point of view, perhaps that would be an opportunity to celebrate what you have in common instead of staying on the attack.

    Not with my enemy. 

    • #143
  24. danok1 Member
    danok1
    @danok1

    Gary Robbins (View Comment):

    What do you think of the Washington Post calling Mitch an “Apex Predator”?

    Can’t recall if I saw this on twitter or here, but it’s a helluva good thing for Mitch to use in the campaign.

    Tagline: Mitch McConnell, the Apex Predator of Washington.

    VO: I’m Mitch McConnell, the Apex Predator of Washington, and I approve this message.

    • #144
  25. Clifford A. Brown Member
    Clifford A. Brown
    @CliffordBrown

    Percival (View Comment):

    Appointing judges interested in upholding the document that, among other things, authorizes their existence as a court, would seem to be a no-brainer.

    We have been promised justices that would do just that; that was the reason that I have been holding my nose and voting for McCain, then Romney. Those who for whatever reason imagine themselves “the elite” seem to fail on this one rather simple task.

    It’s time to deliver.

    Exactly so. This is what the Republican’t Party has been falsely promising, to keep conning their way into office, since around 1980. The moment of a possible 5-4 or 6-3 majority is here. The Senate Republicans either deliver before the election or rightly get wiped out.

    • #145
  26. Clifford A. Brown Member
    Clifford A. Brown
    @CliffordBrown

    Gary Robbins (View Comment):

    Saint Augustine (View Comment):

    Gary Robbins (View Comment):
    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.

    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.

    That is nonsense on stilts. The “adults” you admire are institutionalized experts, rightly rejected by President Trump and his electoral majority voters.

    • #146
  27. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Gary Robbins (View Comment):
    Trump has fired all of the adults who could have constrained him.

    Objections written or liked above.  Trump also fired the Mooch, hired Barr, etc.

    But you know what?  I think this is a fair description of some of the people the Trump administration has lost, like that general everyone used to like.  Was it Mattis, or am I getting the names mixed up?

    • #147
  28. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    Now that Lamar, Mitt and everyone else than Collins and Murkowski have agreed to hear the confirmation now, the issue is now moot.  

    For better or worse, and regardless of if I think that Democrats can accuse Republicans of hypocrisy, there is going to be a confirmation hearing.  

    Given that, now we can joke about if Cocaine Mitch should be called an “Apex Predator.”  

    • #148
  29. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Gary Robbins (View Comment):

    Given that, now we can joke about if Cocaine Mitch should be called an “Apex Predator.”

    He’s the Cocaine Apex Predator Ninja Murder Turtle Mitch.

    • #149
  30. Django Member
    Django
    @Django

    Gary Robbins (View Comment):

    Now that Lamar, Mitt and everyone else than Collins and Murkowski have agreed to hear the confirmation now, the issue is now moot.

    For better or worse, and regardless of if I think that Democrats can accuse Republicans of hypocrisy, there is going to be a confirmation hearing.

    Given that, now we can joke about if Cocaine Mitch should be called an “Apex Predator.”

    I heard an interesting debate today: Should there be confirmation hearings so the Democrats can make fools of themselves as they did with Kavanaugh, or should the GOP just hold the vote and skip the hearings? I’d vote for the latter, but I guess we’ll see. So far, it looks like three days of hearings. 

    • #150
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