If the Democrats win in November and gain control of both Congress and the White House, they will pack the Court ASAP. Appeasing them by waiting to nominate a new Justice won’t work.
Democrats Fear Loss of SCOTUS
- SCOTUS is Democrats’ best political and social instrument of change.
- Democrats know voters do not support their plans enough to accomplish them using openly democratic methods.
Stop a Raw Electoral Play
Democrats already have threatened to contest the outcome of the election, which means this will take the challenge all the way to SCOTUS. An extra seat on the Court, held by a Constitutional textualist, is the best protection, even a deterrent, advises Andrew McCarthy, against a raw extra-electoral play.
Mr. McCarthy explains in NRO how Justice Ginsburg’s replacement is strictly a matter of political calculation.
It is ridiculous for leading senators, administration officials, influential partisans, and pundits to enunciate the high-minded principles and precedents that supposedly control the propriety and timing of a nomination.
In reality, there are only two rules, both set forth in the Constitution:
- A president, for as long as he or she is president, has the power to nominate a person to fill a Supreme Court seat.
- That nominee can fill the seat only with the advice and consent of the Senate. That’s it. Everything else is posturing. Everything else is politics.
Republican judicial nominees tend to be forces of stability favoring judicial restraint. Exercising judicial restraint enables Americans to “determine democratically how they wish to live.”
Joe Biden demanded over the weekend restraint in picking a new Justice before the election: “The voters should pick the President, and the President should pick the justice for the Senate to consider.”
Perhaps Joe doesn’t realize that the voters actually have picked a President and Senate, “which together have full constitutional power and authority to pick a replacement for Ginsburg, right up until January 20, 2021,” offers Francis Menton in The Manhattan Contrarian.
Why Has Biden Not Released Potential SCOTUS Names
By contrast, the public rightly sees Democratic judicial nominees as forces of radical change, imposed by judicial fiat at the expense of democratic self-determination. That is why Biden does not want to release his list of potential Supreme Court nominees. Democrats prudently fear that it would frighten voters and hurt his chances.
For now, President Trump is signaling that he intends in short order to announce a nominee to fill the vacancy left by Justice Ginsburg’s passing, and that he will push for Senate consideration.
There is a good chance that he won’t get Senate consideration before the election . . . but that the nomination of a solid prospective justice, and the inevitable comparison of the kinds of jurists a Biden administration would appoint, will help the president’s reelection bid.
Ginsburg’s Wishes Not Constitution’s Command
Much is being made by the media of Justice Ginsburg’s pre-death dictated statement to her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.”
As the WSJ points out, the deceased Justice’s wish, despite what she wrote, is not the Constitution’s command.
The President has the power to nominate a successor as soon as he desires, and the Senate then has the power to confirm or not. The timing of that vote is a matter for the Senate to decide, and the current Senate can hold a confirmation vote even on the last day it is in session if it chooses.
Even though Ruth Bader Ginsburg has been ill for a while, she clearly wanted to be replaced by a Democrat president. As The Spectator points out, the renowned Justice could have retired when she was 80, which would have allowed then President Obama to replace her with a much younger Justice.
Why didn’t she? Justice Ginsburg bet that Hillary Clinton would win in 2016.
RBG lost that bet.