U.S. Supreme Court Justice Ruth Bader Ginsburg died last week at age 87. She served 27 years on America’s highest court and while she was the most dependable vote for the left wing, she also was genuinely liked by people of all political stripes. Her life and her service should be celebrated.
That said, in the real world of rough and tumble politics, the memorial celebration will be short-lived, as the focus rapidly turned to her replacement. Who should appoint the person to fill the empty seat and when should the Senate confirmation hearings be scheduled? The two questions erupted into great controversy following the news of Justice Ginsburg’s death.
Democrats are quite sure that President Trump should not choose Justice Ginsburg’s replacement until after the November election and in the event Joe Biden wins the election, Mr. Trump shouldn’t make the appointment at all. According to several high profile Democrats, the seat on the Supreme Court should sit vacant until the next president is seated.
The Republicans, however, control both the White House and the U.S. Senate and as such, have every opportunity for the president to nominate the next Justice and the U.S. Senate to vote on said nomination. President Trump has announced he fully intends to submit a nominee by the end of this week and Senate Majority Leader Mitch McConnell has promised a vote on the floor of the Senate. For their part, Democrats have promised hellfire if the vote takes place.
Prominent Democrats ranging from Senate Minority Leader Chuck Schumer to media darling Congresswoman Alexandria Ocasio-Cortez have exclaimed that unless the Republicans bend to their will, they may forever change the structure of the United States government. They threaten to pack the Supreme Court, approving four additional seats, each of which would be filled by their incoming “President Biden.” They threaten to create statehood for the District of Columbia and Puerto Rico, adding four seats to the Senate, most likely all Democrat. They threaten to get rid of the Senate filibuster altogether, meaning any Senate majority can run unchecked. In short, the Democrats are threatening to toss out any semblance of fairness and shamelessly game the system unless Mr. McConnell succumbs to their demands.
Their approach reminds me of the current blockbuster movie “TENET.” The evil antagonist in the film determines that if he can’t have his estranged wife, no one can. He intends to have her killed. That same character is eventually revealed to have a terminal illness and has decided that if he can’t enjoy the world, neither can anyone else. He intends to destroy the world. The Democrats are espousing that same approach in the 2020 election. If the system doesn’t work in the manner they think it should, they intend to burn it to the ground.
Eric Holder served as attorney general during the Obama administration. This past weekend he was quoted as saying “So I think that if, if in fact [the Republicans] are successful in placing a justice on the court, I think that what Democrats have to do — assuming Biden is president and there is a Senate majority for the Democrats — we need to think about court reform. And at a minimum, as part of that reform package, I think additional justices need to be placed on the Supreme Court.”
Longtime Democrat Sen. Ed Markey and House Judiciary Committee Chairman Jerrold Nadler both made similar statements. While complaining that the Republicans aren’t following a precedent Democrats say was set in 2016, they threaten to completely throw away the nine-justice court that has been in place since 1860. Total hypocrisy.
Speaking of hypocrisy, let’s review quotes from some of those Democrats from 2016.
“We have a responsibility,” Nancy Pelosi said. “We take an oath to protect and defend the Constitution of the United States.
Joe Biden offered, “The American people deserve a fully-staffed court of nine.”
No less than former President Obama himself said, “When there is a vacancy on the Supreme Court, the president is to nominate someone, the Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court. Historically, this has not been viewed as a question,” he continued. “There’s no unwritten law that says that it can only be done on off-years. That’s not in the constitutional text.”
Failed candidate Hillary Clinton, who’s direction admittedly seems to change as frequently as the wind, said this in 2016, “The president nominates and then the Senate advises and consents, or not, but they go forward with the process.”
Sen. Chuck Schumer: “Every day that goes by without a ninth justice is another day the American people’s business is not getting done.”
Sen. Bernie Sanders was resolute. “The Constitution is 100% clear. The President of the United States has the right to nominate someone to be a justice of the Supreme Court. Senate’s function is to hold hearings and to vote.”
Sen. Patrick Leahy: “You cannot keep a seat on the Supreme Court, which represents all of us, you cannot keep it vacant against the Constitution.”
Sen. Elizabeth Warren: “If you want to stop extremism in your party, you can start by showing the American people that you respect the President of the United States and the Constitution.”
Notice how many times respect for the U.S. Constitution is mentioned. If the Democrats genuinely desire respect for the sacred document, perhaps they should read it. Article II, Section 2 says the following: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”
It couldn’t be more clear. The sitting president of the United States, according to the Constitution, has the duty to nominate a justice for any open seat. There is an open seat currently and President Trump needs to do his duty. End of discussion, or at least it should be. There is no qualifier that says a president must stand down if he is in the final year of a term.
Justice Ruth Bader Ginsburg actually addressed that very issue in 2016. “There’s nothing in the Constitution that says the president stops being president in his last year,” she said after Antonin Scalia’s sudden death left the Supreme Court with just eight justices. She later emphasized one obvious problem with any delay, “Eight is not a good number.”
Some have suggested there is inadequate time for the proper hearings and review of a nominee before the end of the year. History would suggest otherwise. Justice John Paul Stevens was approved in just 19 days, current Chief Justice John Roberts was voted on in 24 days and Sandra Day O’Connor was given a vote on day 33. Perhaps the greatest irony is that Election Day is Nov. 3. The point is, it can be done.
Republican Sens. Susan Collins and Lisa Murkowski have both indicated they don’t believe it is fair to hold the vote before the election. Both should look over the Constitution. More importantly, whether they support the timing or not, their sworn responsibility is to vote on Supreme Court nominations when made if the Senate leadership schedules hearings and a vote. To abdicate that responsibility calls into question their fitness to serve in the Senate at all.
The bottom line is this, the U.S. Constitution is clear that the president is to nominate a person to fill the vacancy, regardless of how much time remains in his term. The Senate is to review the nomination and vote yeah or nay. There are no exceptions. Threats of political extortion and future packing of the court don’t trump the law of the land.
One final note: If the Democrats insist on promoting the idea of packing the Supreme Court, Senate Majority Leader Mitch McConnell should call their bluff. He should schedule a vote before Election Day asking whether senators support expanding the size of the court. If Democrats vote yes and Donald Trump wins reelection, perhaps he could consider obliging their wish to expand.
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