Sep 23 2020
“That’s their job,” Supreme Court Justice Ruth Bader Ginsburg responded when asked in 2016 if the Senate had an obligation to act on President Barack Obama’s nomination of U.S. Circuit Court of Appeals Judge Merrick Garland to the Supreme Court.
“There’s nothing in the Constitution that says the president stops being president in his last year,” Ginsburg added.
Justice Ginsburg was right in 2016, and as we grieve her passing last week, we must acknowledge that she is still right today.
Democrats and their media allies are saying it would unfair for Senate Republicans to fill a seat in this election year when we refused to do so in the last presidential election year. But any close examination of the facts shows that it is perfectly fair and consistent.
In 2012, the American people reelected Democrat Obama for another four-year term as president. In 2014, the American people elected a Republican majority in the Senate. And so, when Justice Antonin Scalia died in February 2016, the relevant institutions were split between the parties.
President Obama exercised his constitutional authority and nominated liberal Judge Garland to replace Scalia. The Senate exercised its constitutional authority and refused to confirm Garland.
This is the constitutional process and the historical norm. There has been a Supreme Court vacancy arising in an election years 29 times in American history. In 10 of those cases the presidency was held by one party and the Senate was held by a different party. Nine of those 10 nominees were rejected by the Senate, just like Garland was rejected.
On the other hand, there have been 19 times when a Supreme Court seat became vacant in an election year where both the presidency and the Senate were controlled by the same party. Only one nominee, Abe Fortas, was rejected.
And Fortas was rejected on a bipartisan basis after an ethics scandal. All other nominees were confirmed in an election year when the Senate and the president were of the same party.
Confirming Supreme Court justices when both parties control the White House and Senate in an election year is perfectly normal. Indeed, it may be the most normal thing Washington does in this most unusual year.
Let us have no wailing and gnashing of teeth about “norms” and “restraint.”
Remember, it was liberals, not conservatives, who in the 1960s turned the Supreme Court into a super-legislature, whereby five liberal justices set national policy without any public accountability.
It was Democrats, not Republicans, who in 1980s established ideological litmus tests for high court justices. It was Democrats, not Republicans, who in 2013 nuked the judicial filibuster in the Senate, which required 60-vote supermajorities to confirm judges.
Replacing Justice Ginsburg should not be controversial. It would instead reduce the likelihood of political controversies being settled by unelected judges in the first place. That’s what the left’s freak-out is really about.
In truth, leftist outrage mobs and the political press don’t really want a Supreme Court of impartial judges at all. Instead, they want a permanent Constitutional Convention, controlled by woke philosopher kings and queens, imposing leftist policies that the American people can’t be bullied into supporting.
And “bullied” is the right word. Underneath all the highfalutin rhetoric about precedents and norms is not an argument, but a shakedown by Democrats, whose position seems to be: If you fill this seat, we’ll burn it all down. We’ll nuke the filibuster. We’ll pack the courts. We’ll add states.
In other words, if Republicans exercise political power, Democrats will respond by abusing theirs.
This is a threat not against a party, but against the American people: Nice republic you’ve got there; it would be a shame if something were to happen to it.
And that is precisely why the president and Senate should not delay in replacing Ruth Bader Ginsburg with another great Supreme Court justice.
Only a conservative, originalist majority on the high court will stop legislating from the bench and return political power to the elected branches of government, where it belongs. Only a conservative Supreme Court can force the left’s outrage mobs to give up their campaigns of violence and intimidation, and finally come back to the constitutional, accountable politics the American people deserve.