Today, we feature another of our Ricochet writers, Henry Racette. Please enjoy and respond to his post on filling the new Supreme Court vacancy brought about by the death of Justice Ruth Bader Ginsburg on Saturday.
About That Vacancy
Now that the coronavirus crisis is essentially over but for the continuing economic disaster being wrought by various governors and power-drunk state officials, we could do with yet another catastrophe to keep the press enthused through the end of this election year.
The passing this week of Justice Ginsburg will do just fine.
Let me explain why it is right, proper, and essential that the Court be restored to a full complement of nine members prior to the election.
GARLAND v (UNKNOWN)
You’ll hear endless babble about the way Senator McConnell handled the Garland nomination, President Obama’s lame duck nomination that McConnell refused to allow to be voted on by the Senate. People will say it’s hypocritical of the Senate to vote now, when it failed to vote on Obama’s nomination. They’ll argue that it’s a breach of trust with the American people, etc., etc.
That’s all wrong, and here’s why.
It isn’t hypocrisy to treat the two situations differently because the two situations are in fact different. Obama was a lame duck in his last year in office, filling a vacancy (Justice Scalia’s) created in that last year in office, and opposed by a Senate the electorate had handed to the Republicans. Never in U.S. history has the Senate confirmed a Supreme Court nomination in such circumstances; Senator McConnell wisely chose not to preside over the first Senate to do so.
In contrast, the President and the Senate are of the same party. If the Democrats had taken the Senate in 2018, it would be perfectly reasonable for them to block the President’s next nomination; I would expect nothing less (though I’d hope they didn’t stoop to the character assassination they displayed during the Kavanaugh confirmation). But the American people left the Senate in Republican hands, and I hope that Senate will support the President as he makes yet another excellent appointment.
BUT THE CONSTITUTION!
So ignore the hypocrisy claim. And absolutely scoff at anyone who pretends that there are actually constitutional barriers to a speedy appointment: that’s simply wrong. As an iconic Supreme Court Justice once observed, “there’s nothing in the Constitution that says the President stops being President in his last year.” (In fact, that was Justice Ginsburg herself.) Similarly, there is nothing in the Constitution that says the Senate stops being the Senate in an election year. There are no legal nor Constitutional barriers to a speedy nomination and confirmation.
There’s a particularly troubling claim you’ll hear, which is that Justice Ginsburg, in her final days, said the following:
“My most fervent wish is that I will not be replaced until a new president is installed.”
Let me be very clear. I will say nothing ill of the late Justice, and I applaud her tenacity and strength during what must have been extraordinarily difficult times. It is my hope that she didn’t in fact say what has been attributed to her, because the idea that she would have is repugnant to me and would diminish her in my eyes.
Filling a seat on the Supreme Court is a high honor, a position of service to the American people granted with great ceremony and enormous trust. But the seat is not the property of its occupant to be assigned by him or her to the next candidate, and the late Justice has no more right to determine who occupies it next than I have. I would like to believe that Justice Ginsburg appreciated the dignity of the court and its unique role to uphold the Constitution, and wouldn’t try to subvert the Constitutional provisions for peopling the Court by attempting to impose her own political vision upon her successor. That would be a kind of betrayal — though, in fairness, perhaps one forgivable in an old and critically ill woman.
WHY IT’S NECESSARY
There is no legal, Constitutional, procedural, or moral reason not to quickly confirm a new Supreme Court Justice. There are two practical reasons why it is extraordinarily important that we do appoint a new Supreme Court Justice as quickly as possible.
First, and most importantly, there is already ample reason to expect the 2020 election to be legally challenged regardless of outcome. The Democratic candidate himself has spoken openly, and strangely, of having the support of the military in the event that the election doesn’t appear to go in his favor. Secretary Clinton is on record as advising Vice President Biden that he should not concede, regardless of the electoral outcome. Given this, it is hard to see how a Trump victory will not be challenged in court.
Left-leaning and Democratic think tanks have been “war-gaming” (simulating) various scenarios for challenging the 2020 election results. The most widely published account finds only one electoral outcome that does *not* lead to widespread violence and/or a Constitutional crisis, and that is a landslide Democratic victory. Every other outcome leads to chaos.
Add to this the left’s enthusiasm for mail-in voting, which is inherently less secure than in-person voting and so more susceptible to challenge, and we have been put on notice: if the Democratic candidate doesn’t win, we should expect a Constitutional crisis.
We will need a Supreme Court with an odd number of Justices present. A hung Court unable to resolve a contested outcome of the 2020 election will leave the country in a precarious and dangerous condition: for the first time in history, the transition of power will be uncertain.
That possibility alone demands that we restore the Court to nine members before the election. A failure to do so will be inexcusably reckless, endangering the world’s greatest democracy and its uninterrupted tradition of peaceful transition of power.
The second reason that it is essential that we fill the court is that there are those who fear widespread civil unrest and violence if the Senate does act quickly.
There’s a word for that, for the threat of violence if a particular political demand is not delivered. It’s called terrorism. The United States should not submit to the demands of terrorists, whether they’re foreign or domestic. Anyone who argues that the Senate must not act for fear of triggering a violent backlash is calling for the appeasement and rewarding of domestic terrorists.
To hell with that. We don’t surrender our Constitution because one side isn’t willing to lose with grace. Congressmen are about as spineless a species as one will find, but when given the choice of answering to the mob or answering to the Constitution they’d best not find it a hard decision to make.
ONE LAST THING
Those reasons are more than enough, but there’s one more practical consideration. President Trump has made hundreds of very good judicial appointments. There’s every reason to believe that his next Supreme Court nomination will also be very good. There’s every reason to believe that a Democratic nomination will not be good at all.
People are confused about what “conservative” means when we’re speaking of the Supreme Court. “Conservative” and “liberal” when it comes to the Supreme Court is a bit like “firefighter” and “arsonist” when it comes to house fires. The purpose of the Supreme Court is to interpret and uphold the Constitution. Its purpose isn’t to rewrite the Constitution, to reinvent the Constitution, or to “fix” the Constitution. It isn’t to burn the Constitution down.
“Conservative,” in the context of the Supreme Court, means pro-Constitution. Everyone who values Constitutional governance should support conservative Justices.