United States Supreme Court Justice Ruth Bader Ginsburg died Friday, September 18, 2020. She will be remembered as a liberal icon for her steadfast advocacy on behalf of women both before her appointment to the Court by former President Bill Clinton, and after. She had an extraordinary keen mind and a humorous zest for life – they are the reason that she and former Justice Anton Scalia were such fast friends despite their polar opposite political views. Even though I disagreed with her judicial philosophy/activism Justice Ginsburg is deserving of our respect and our condolences to her family. She represents a life well lived.
But with her passing comes the need for her replacement. The constitutional requirements are straight forward and without ambiguity. The President of the United States appoints a successor and the United States Senate confirms or rejects that appointment by a majority vote. All the rest of the hand wringing by the chattering class is just politics and in politics there are not any rules. What is said today, doesn’t apply to tomorrow. Hypocrisy abounds and rationales are just words – lost the moment they are spoken.
The Democrats are demanding that President Trump refrain from naming a successor and leaving that to the winner of the presidential election in November. Of course they said not a word when former President Barack Obama nominated Judge Merrick Garland in his final year. The Democrats screamed like banshees when Senate Majority Leader Mitch McConnell refused to allow Mr. Obama’s nomination to come before the Senate for a vote. They say the same should go in the instance of Mr. Trump’s nomination. But the Democrats are not in the majority in the Senate as were the Republicans for Judge Garland’s nomination. If they were they could and most importantly would do exactly the same thing. But they aren’t, and so they can’t – that’s politics.
That might not seem fair but “fair” has nothing to do with it. This is politics and “fair” is such a subjective standard that it has been rejected routinely by courts as being void for vagueness. In the political world fairness to one side means capitulation by the other. Likewise “bipartisanship” – a concept imaginable in definition but not in practice. “Fairness” and “bipartisanship” as practiced by Democrats means “you play ball with us and we’ll take our bat and shove it up your nose” or “we get everything and you pay for it.” For Republicans “fairness” and “bipartisanship” means going along with the Democrats so that the mainstream media doesn’t yell at you. And we can all see how well that works out.
There are only two relevant factors to be considered. First is Mr. Trump’s nominee well qualified for the position. Given his previous two nominations – Justice Neil Gorsuch and Justice Brett Kavanaugh – the likelihood that Mr. Trump will nominate someone of similar stature is pretty well guaranteed. The second factor is one of substantive political philosophy. If we are to believe the current presidential polls* Mr. Trump is likely to lose his bid for re-election. This may be the last chance the Republicans and conservatives have of reversing the path of judicial activism – a practice that the Democrats have used for at least three decades to force societal changes that they could not obtain through the constitutional legislative system. One of the rules of success – regardless of whether it is politics or enterprise – is to strike while the iron is hot. There is no better time than now to use the power previously granted by the voters.
If Mr. Trump wins, so much the better. He will have the chance to replace another liberal – Justice Stephen Breyer, who is now 82. And he will have the opportunity to secure conservative Justice Clarence Thomas seat with another conservative should Justice Thomas wish to retire as he has ruminated about in the past.
But as usual, we have a handful of Republicans who are wringing their hands. To be fair neither Sen. Susan Collins (R-ME) nor Sen. Lisa Murkowski (R-AK) has said that they would vote against Mr. Trump’s nominee; rather they have said they don’t want to vote before the election. Under the arcane rules of the Senate, you have to have a procedural vote as to whether you should have a substantive vote. (Mostly, they are worried about whether they will be re-elected. It is doubtful that should Ms. Collins and Ms. Murkowski lose the procedural vote that they would, out of spite, vote against the nominee on a substantive vote.
But before Mmes. Collins and Murkowski fall to the memes of “fairness” they should tell us which of their Democrat colleagues would refrain from voting were the shoe on the other foot. And the answer is “not a single one.”
Cowardice in the face of adversity is never a virtue and inaction is just another name for cowardice. And cowardice will simply encourage more adversity, more mockery and more violence – ask the Mayor of Portland, Oregon.
It is time to do your duty – vote and let the chips fall where they may. If you don’t think there is a life after the United States Senate, you have a very myopic view of life.
*I don’t believe those polls because they were dead wrong the last time and the same biased news organizations are responsible for them again. Polls are easy to manipulate based on sampling sizes, the form of the question and the means by which the answers are received. Most of the polls thus far represent a total vote count that does not reflect the fact that we use the electoral college method – a seeming surprise to Hillary Clinton and the Democrats in the last presidential election.