Diary

On Replacing Ginsburg: No Excuse Not To

Supreme Court Justice Ruth Bader Ginsburg reacts to the welcome she receives before participating in a "fireside chat" in the Bruce M. Selya Appellate Courtroom at the Roger William University Law School on Tuesday, Jan. 30, 2018, in Bristol, R.I. (AP Photo/Stephan Savoia)

As the legal and political world is painfully aware, Supreme Court Justice Ruth Bader Ginsburg passed away.  This has led to all sorts of vitriol from the Left threatening to “burn things down” to showing up at the home of Senate Majority Leader Mitch McConnell (when he was not even home) in a mob of low-information rabble-rousers who likely do not even know how man Justices there are on the Supreme Court.  There is also the debate over whether President Trump will or should name a replacement nominee, or leave it to the new President, whoever that may be, come November.

From a timing and ideological standpoint, this vacancy is qualitatively different from the Kennedy resignation and has its closest analogy to the Scalia vacancy and Obama’s appointment of Merrick Garland, although that vacancy certainly occurred much earlier in a Presidential election year.  This one occurs with less than 50 days until Election Day.  Further, if Trump is true to his word and his public list of preferred candidates, this has the potential to create an ideological shift on the Court.  There is no doubt that RBG was a “legal lioness,” but I would qualify that as a “liberal legal lioness.”

Leaving aside the charges of hypocrisy against McConnell and other Republican Senators (two of whom- Murkowski and Collins have “defected”), and threats of burning things down, let’s look at this realistically.  If Trump soon nominates a replacement, the outrage and uproar will have nothing to do with some so-called “McConnell rule.”

There are 45 days until Election Day.  Only two nominees in recent history- Sandra Day O’Connor and John Paul Stevens- were confirmed in less than 45 days.  RBG was confirmed in 42 days, but when and if Trump makes a nomination, it will be less days until the election.  In the 13 nominations after O’Connor, it has taken an average of almost 75 days from the point of nomination to the point of confirmation by a Senate floor vote.  This puts a floor vote about a month after Election Day during a lame duck Senate.

Of course, the entire argument falls apart if Trump makes a nomination, wins the election, and the GOP keeps control of the Senate after Election Day.  The other possibility is that Trump loses to Biden while the GOP keeps control of the Senate.  The third possibility is Trump loses and the GOP loses control of the Senate.  The whole point is whether a lame-duck Senate can or will confirm Trump’s nominee in the latter scenario.

Because there may be a change in the White House, or even an impending change of party leadership in the Senate, that does not mean that the Senate suddenly grinds to a halt.  There are ample examples of Congress convening almost until Christmas and after to pass “emergency” legislation.  Getting a ninth Justice on the Supreme Court is certainly an “emergency.”  The Court works best with nine members, not an even number given close cases at times.  Even Ginsburg realized this and stated such.  As it is now, in the next term, which begins on October 5th, there will be eight Justices.

Assuming Trump loses and the GOP keeps the Senate, there are numerous examples through US history for the Senate, as currently composed, to hold a confirmation vote on a lame-duck Presidential nomination.  Hence, it makes absolutely perfect legal and historical sense for Trump to nominate a replacement and for the current Senate to act on that nomination.

If we go by the average amount of time from nomination to confirmation vote- 75 days- and assume Trump makes an announcement around September 25th, that would place a Senate floor vote sometime around December 9, 2012.  As others have noted on these pages, even if Trump loses, the President-elect is not Constitutionally-recognized position.  Trump would be President until January 20th and only he has the power of nomination, not a President-elect Biden.

Thus, the ball is really in the court of the current Senate.  Lindsey Graham is Chairman of the Senate Judiciary Committee which will hold hearings on the nomination.  His past comments in this area seem to have backed him into a rhetorical corner.  This writer believes that he will slow-walk any process, then whether Trump wins or loses, move forward before a new Senate is seated in January, 2021.  However, Graham answers first to his constituents and secondly to McConnell.

Given these legal, historical, and Constitutional facts, not to mention the urgency of having a full nine-member Supreme Court as soon as possible, there is absolutely no excuse for Trump not to make a nomination and for the current Senate to not act upon that nomination.

It makes little difference the reaction from Democrats/the Left.  They are going to scream from the rooftops and hoot and holler if Trump nominated Mother Teresa or Jesus Christ Himself.  They would be demanding an FBI investigation into those “water-into-wine” claims.  Mother Teresa would be portrayed as some borderline pedophile for caring for poor children.  In other words, screw the Democrats and the Left and what they say, yell about, or burn down to make their point.

Personally, I believe it is all for naught since I believe Trump will defeat Biden in November.  I do not believe a vacancy on the Supreme Court is really on the minds of voters as the economy and the Wuhan flu are the two major issues followed by law and order.  The Democrats do not exactly have a stellar record on these issues which will dominate.  There will be questions in a debate and we know where Trump stands.  Even still, although they will try to make it an issue, it is the bread-and-butter issues that will decide this election, not the death of Ruth Bader Ginsburg.