Few will dispute that Supreme Court Justice Ruth Bader Ginsburg who passed away last Friday at age 87 following years of valiant struggles with cancer was a truly remarkable woman, legal jurist, and iconic champion of gender rights.
It is also a fact that Justice Ginsburg’s health concerns had unsuccessfully prompted the Obama administration to urge her to retire so that a replacement could be seated with certainty while Democrats controlled the White House and Senate.
The partisan battle over that seat, now open at a time of enormous partisan national pre-election turmoil, promises to be epically confrontational and historically impactful. And whereas the outcome is presently unknowable by anyone, key strategic battle issues, options and tradeoffs on both sides are highly predictable.
Just hours after Justice Ginsburg’s death, Senate Majority Leader Mitch McConnell, R-Ky, promised to put a Trump nominee up for a vote before November. That position was soon reiterated by Sen. Ted Cruz, R-TX, who said it was “critical” that the Senate confirm a replacement for Ginsburg before the election because it was “why Donald Trump was elected.”
Cruz emphasized that it was particularly important that the Ginsburg vacancy be filled before the election to avoid a potential split decision impasse over resolving a contested election result. Speaking on Fox News, Cruz warned that a divided 4-4 Supreme Court “cannot decide anything,” and under that scenario, “I think we risk a constitutional crisis.”
Such a decisive standoff dilemma is hardly a remote prospect. On August 26, anticipating a delayed presidential election outcome, Hillary Clinton said, “Joe Biden should not concede under any circumstances, because I think this is going to drag out, and eventually I do believe he will win if we don’t give an inch, and if we are as focused and relentless as the other side is.”
Clinton’s statement during an interview with her former communications director Jennifer Palmieri for Showtime’s “The Circus,” comes at a time of contentious Republican versus Democrat legal battles over unsolicited mass mail-in voting.
Conservatives typically view the liberal COVID-lockdown-argument primarily as a ruse to counter their far more energized in-person voting turnout, enable widespread tabulation fraud and ballot harvesting, and intentionally and interminably delay winner results in the event Trump is reelected.
Conspicuously active lawyering up of Democrat litigants offers strong evidence that such concerns are warranted.
Seating constitutionally originalist Supreme Court vacancy replacements is a top conservative voting priority among those who have witnessed a growing trend of progressive judicial activist rulings regarding many issues they care most about. Key among these are right to life, immigration, second amendment protections, preserving the Electoral College, and now most immediately urgent, securing election integrity.
President Trump has made it clear that he intends to move quickly to nominate a Ginsburg replacement. Among the candidates, Circuit Judge Amy Coney Barrett is among those believed to be a frontrunner.
On Saturday, Trump tweeted,
“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court justices.”
In another tweet, Trump thanked former Sen. Harry Reid, D-NV, for in 2013, abolishing the requirement for presidential appointees to receive 60 votes for confirmation. In 2017, Senate Majority Leader McConnell extended the policy to Supreme Court nominees.
Unsurprisingly, with the election about a month and a half away, the plan to move forward on a pre-election Ginsburg seat replacement vote has triggered immediate and vociferous Democrat backlash.
Presidential candidate Biden told reporters on Friday, “Just so there is no doubt, let me be clear: The voters should pick a president and that president should pick the justices for the Senate to consider.”
Former President Obama said in a late Friday statement: “Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.”
Referring to the Senate’s refusal to confirm his proposed replacement for the late Justice Antonin Scalia who died in February 2016, Obama added, “A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.”
Obama continued, “The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle.”
Subsequently and unexpectedly, Donald Trump was elected and nominated Neil Gorsuch who was then confirmed.
Sen. McConnell drew a distinction between the current scenario and the Merrick Garland precedent in 2016 when the Senate was controlled by Republicans and a Democrat president nominated in an election year. Now, both the Senate and the presidency, are controlled by Republicans.
Here’s a non-trick question. What would you suppose a Biden administration and Senate Minority Leader Chuck Schumer would choose to do if the tables were turned?
Schumer told congressional Democrats on a Saturday conference call that “nothing is off the table next year” if McConnell and his Republican allies move to fill Justice Ginsburg’s Supreme Court seat in the coming weeks.
As for what he is referring to as being already “on the table,” Schumer’s comments come amid calls from fellow Democrats, including Sens. Jerry Nadler and Ed Markey, to abolish the filibuster and expand the number of Supreme Court judges to counteract the appointment if they regain control of the presidency and Senate. Although that number has been locked at nine members since 1869, the U.S. Constitution doesn’t prevent changing that.
It’s also no secret that the Democrats will push statehood status for the District of Columbia and Puerto Rico to add progressive Electoral College advantages.
All of this contentious back-and forth comes with calculated but indeterminate risks on both sides, setting the stage for an incendiary war both before and in the aftermath of the November elections.
There are no current assurances either that the GOP Senate has a necessary simple majority to pass a pre-election confirmation vote, or even then, whether they can manage to pull it off before November 3. If necessary, however, Vice President Pence, as Constitutionally authorized ex efficio president of the Senate, could act as a voting tie-breaker.
Then again, if postponed by intent or delay until after the election, the unresolved issue can be expected to disproportionately amp up Republican voter turnout and balloting advantages. And even with either or both White House and Senate losses, the Republican senators still have until January 3 to confirm the Supreme Court nominee.
Democrats, on the other hand, might have good reasons to worry that vicious attacks on the nominee of the ugly sort witnessed in Justice Brett Kavanaugh’s confirmation hearings will turn off and turn away many moderate voters. Assaults on a female nominee will be regarded as especially disgusting.
Delayed and contested election results through mail-in ballot vetting and tabulation litigation present high likelihood of inciting more episodes of street violence, looting and property destruction that have come to plague many Democrat-run cities. This would be a very misguided strategy to gain future public confidence in progressive party policies and leadership.
So yes, the outcome, the battle over Justice Ruth Bader Ginsburg’s replacement seat will be enormously bloody and consequential to the future of our American republic. The outcome will significantly and eternally influence elections of presidents, legislatures, and fundamental Constitutional interpretations.
This is a dangerous, inevitable and incalculably unpredictable war. And it is well worth fighting.