As most of you know, Ruth Bader Ginsburg’s passing has left a vacancy on the Supreme Court to be filled. As I predicted in my last blog a fierce battle has ensued over the timing of nominating her replacement. In all likelihood, this will be as contentious as the election, itself, and, in the long run, may turn out to be even more significant. Why, you may ask? Because, the nominee could be on the court and ruling on matters for decades.
Predictably, President Trump and his supporters want the vacancy filled as soon as possible and by a right-of-center candidate. Based upon multiple media reports Mr. Trump plans to disclose his choice by the end of the week. He has committed to naming a woman. He has stated that there are five under consideration. The two most likely candidates seem to be Amy Coney Barrett and Barbara Lagoa. Both are strong candidates and both seem to check the required right-of-center boxes. Barrett has more experience on the Appeals Court and is better known, but Lagoa has the added benefits of being Hispanic and from a key battleground state, Florida. The Dems and their supporters are strongly opposed not only to both of them but also to the very idea of any nomination.
It is important to understand one thing right at the outset. The Constitution states clearly and emphatically that the President is authorized to nominate Justices to the Supreme Court with the “advice and consent of the Senate.” It does not say “except during an election year.” So, legally, the Dems do not have a leg to stand on. Their sole avenue of recourse is to prevent the Senate from confirming a nominee.
That could happen as the GOP only has a three person majority. Furthermore, two Senators, Lisa Murkowski and Susan Collins have already expressed a reluctance to proceed before the election, and a few others are reportedly wavering.
Don’t be deceived by the media reports criticizing President Trump for taking this action. His plan is not without precedent. My research has disclosed that since 1900 there have been several instances in which a president, both Dem and GOP, has nominated and the Senate has confirmed a SC Justice in an election year. You may hear someone mention the “Thurmond Rule” as justification to prevent a nomination during an election year. This “rule” is named for former senator Strom Thurmond who basically made it up to justify blocking LBJ’s nomination of Abe Fortas back in the 1960s. However, it is not an actual “rule,” and it has no legal standing.
Politicians on both sides of the aisle are being very disingenuous about this entire issue. Predictably, the GOPers are defending Mr. Trump’s proposed action, while the Dems are condemning it. As always, most of the media is supporting the Dems. In my opinion, their arguments are specious.
The bottom line is it is all about power. The Party that has it will want to forge ahead with the nomination; the Party on the short end will oppose it. The prospect of having an additional “friendly” SC Justice on the Court for life is too valuable a commodity to ignore.
If one does a little research one will find instances in the past where each of them has argued for the other side of the issue. For instance, as recently as 2016 former President Obama, VP Joe Biden, Senate Minority Leader Chuck Schumer and other leading Dems were pushing for the confirmation of Merrick Garland as a replacement for Antonin Scalia even though it was an election year, and Mitch McConnell and leading Republicans were opposing it. Even Ginsburg spoke out in favor of Garland’s candidacy. Now, supposedly she told her granddaughter she was opposed to an election year nomination. I understand their motivation. I don’t consider it hypocritical. In politics, it’s all about power. If you have it, use it while you can.
CONCLUSION
One reason why it is imperative to fill the SC vacancy as soon as possible is the strong possibility that the Court will be called upon to resolve presidential election disputes in one or more states (as in 2000), particularly with respect to mail-in ballots. In that event having only eight members could result in a 4-4 tie. That would throw the dispute back to the appeals courts and degrade the validity of the election results further in the eyes of many voters. That would be devastating as the key to the continued viability of the Republic is that the voters have confidence that elections are free and fair.
In summary, expect a lot of posturing and threatening from the Dems between now and the election. Already Chuck and Nancy have threatened that if the Republicans proceed “nothing [will be] off the table.” What does that mean? Your guess is as good as mine, but in the past they have signaled they may seek to “pack” the Senate by pushing for statehood for Puerto Rico and Washington, DC, impeach Mr. Trump again, and/or seek to “pack” the court when they reacquire power. (The first one is farfetched; the latter two have already been tried and failed.)
As I said, I expect this issue to add to the divisiveness, violence, contentiousness, and mistrust we are already experiencing.
My advice to Dems. Grow up. Quit your griping. In the words of former President Obama, “elections have consequences.” If you don’t like what’s happening, try winning more of them.
We Built It Blog by Larry Jacob 