The passing of Justice Ruth Bader Ginsburg at age 87 from pancreatic cancer has set up a monumental fight over her replacement during an already turbulent election season. President Trump has vowed to nominate a woman to fill her seat this week. An enthusiastic crowd of Trump supporters urged him on, chanting “Fill that seat!” repeatedly at a rally in North Carolina on Saturday evening.
President Trump’s selection of his nominee will come from a list he had previously released. The president said that he would wait until this Friday or Saturday to announce his pick in deference to Justice Ginsburg’s memorial services.
Although not specifying a date for a Senate vote, Republican Majority Leader Mitch McConnell issued a statement Friday night declaring: “President Trump’s nominee will receive a vote on the floor of the United States Senate.” He strongly urged his fellow Republicans to keep their “powder dry” when discussing their preferred timing for a vote.
The Democrats are howling in protest, starting with Joe Biden who insisted that Justice Ginsburg’s seat remain open until the voters pick the next president. “Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created,” Biden said on Sunday during remarks he delivered in Philadelphia. “Don’t go there. Uphold your constitutional duty, your conscience. Let the people speak.” He claimed that filling Justice Ginsburg’s seat with President Trump’s nominee during the remainder of his current term would amount to an “abuse of power.”
Sorry Joe, but there is no “abuse of power” in following the Constitution’s process for the nomination and confirmation of judges, including Supreme Court justices. The president nominates. The Senate advises and consents. That is not only their constitutional right. It is their constitutional duty. Moreover, the Senate decides its own rules and procedures in exercising its “advice and consent” powers.
Unlike President Trump, Joe Biden has shown disdain for the voters by not releasing immediately his own list of names of possible Supreme Court nominees from which he would choose if he wins the election. All that Biden has said to date is that he would select the first African-American woman to sit on the Supreme Court.
Biden doubled down Sunday, calling demands for him to disclose his list of potential Supreme Court nominees a mere “game” and “a play to gin up emotions and anger.” What an insult to the intelligence of the American people! It’s not just the Trump campaign pressing for transparency. Progressive groups such as Demand Justice are also urging Biden to provide his list right now before the election.
It’s time, Joe, to level with the voters who have a right to know specifically the people you think are suitable to replace Justice Ginsburg. Are you afraid that if you release a list that pleases the highly vocal leftwing base of your party you will alienate the centrist Democrats and independents you need to win? On the other hand, if there are too many moderates on your list, will you alienate the progressives? Caught between a rock and a hard place, it may make sense politically for you to stall for as long as you can. But spare us your self-righteous preaching about letting “the people speak” when you refuse to be honest with the people before they speak with their votes.
President Trump’s last challenger, Hillary Clinton, could not resist trying to remain relevant with her strident calls for Senate Democrats “to use every single possible maneuver that is available to them to make it clear that they are not going to permit Mitch McConnell to enact the greatest travesty, a monument to hypocrisy that would arise from him attempting to fill this position.” Clinton added, “You know, every possible procedural obstacle has to be thrown in the way of this power drive by McConnell. There are things that can be done that need to be done literally 24/7.”
Will Hillary Clinton ever stop her ranting? Back in August, Clinton advised Biden not to concede the 2020 presidential election “under any circumstances.” Denied the presidency in 2016, which she still believes belongs to her, Clinton may be vying for a seat on the Supreme Court if Joe Biden is elected. That chilling prospect alone is enough of a reason to fill Justice Ginsburg’s vacated seat with President Trump’s nominee!
Leftists are clearly writing the Democrats’ playbook. Democrat Senate Minority Leader Chuck Schumer appeared at a joint press conference on Sunday, for example, with the ultra-left Democratic Socialist Rep. Alexandria Ocasio-Cortez (AOC) to excoriate Senator McConnell and the Republicans for “blatant, nasty hypocrisy” and “playing with fire.”
Schumer let AOC take the lead. The radical Squad leader would not rule out the option of forcing the Senate to take up new impeachment proceedings against President Trump or U.S. Attorney General Bill Barr. The purpose of this desperate tactic would be to tie up the Senate with an impeachment trial that is supposed to take priority above all other Senate business, including filling the open Supreme Court seat.
House Speaker Nancy Pelosi has also not ruled out the impeachment gambit. “Well, we have our options. We have arrows in our quiver that I’m not about to discuss right now,” Pelosi said. She was responding to a question by ABC News “This Week” host George Stephanopoulos about the possible use of impeachment as a means of running out the clock for the current Senate term. If the Democrats decide to stoop this low, Senate Majority Leader McConnell should simply reject the impeachment ploy out of hand as a clear abuse of power by the House of Representatives to sabotage the regular order of the Senate.
Schumer and other Democrats warned of other dire consequences if McConnell and the current Senate Republican majority do proceed. Schumer said that “everything is on the table.” Senator Ed Markey (D-Mass.), who was backed by AOC and Senator Elizabeth Warren during his primary campaign, was blunter: “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
The so-called McConnell “precedent” refers to the Majority Leader’s decision in 2016 to block President Obama’s nomination of Merrick Garland following Justice Antonin Scalia’s death. McConnell said back then that no Supreme Court vacancies should be filled during a presidential election year before voters have the chance to decide in the election who gets to nominate the successor. However, those trying to use the words of McConnell and other Republican senators in 2016 against them today are deluding the American people with a false comparison.
The Constitution’s “advice and consent” clause did not require the Senate to hold hearings or hold an up-or-down vote on President Obama’s nomination. The Republican majority in the Senate was permitted to constitutionally withhold its consent for any reason, including by not acting at all on a nominee named by the president from the opposing party. In fact, the Constitution’s Framers considered and rejected an alternative that would have required the Senate by majority vote to veto a nominee or the nominee would be deemed approved.
When Senator McConnell blocked Obama’s nomination of Merrick Garland to fill Justice Scalia’s seat in 2016 in order to give the voters a say, the presidency and the Senate majority were held by opposite parties. Obama was in his final presidential term. Voters faced the choice in 2016 of either continuing or ending the existing political division between the two co-equal branches of government responsible respectively for the nomination and confirmation of the next Supreme Court justice. Voters decided to end the division and placed the responsibility of nomination and confirmation in the hands of the same party.
In 2018, the voters reaffirmed their decision. Voters in contested Senate elections voted to expand the Republican majority. They elected senators who had promised voters during their campaigns to help President Trump keep his promise to fill any further Supreme Court openings during his first term in office with conservative judges. The Supreme Court was very much on voters’ minds at the time. The Senate elections in 2018 followed on the heels of the character assassination the Democrats on the Senate Judiciary Committee – especially Biden’s running mate Senator Kamala Harris – launched against Justice Brett Kavanaugh.
Elections have consequences. When the same party controls both the White House and the Senate, the Constitution’s “advice and consent” clause does not require that the Senate hold off considering and voting on the president’s nominee during a presidential election year. The Democrat-controlled Senate did not hold off confirming FDR’s nominee to fill a vacant Supreme Court seat during the 1940 presidential election year, which it did before the election. President Trump should be accorded the same opportunity to have his nominee confirmed by the Republican-controlled Senate.
This year’s election will have widespread mail-in voting across the country for the first time. There will be inevitable delays in vote counting for days or weeks beyond Election Day and armies of lawyers poised to litigate, up to the Supreme Court if necessary, the conclusive result of one of the most hotly contested presidential elections in American history. In such a case, a 4-4 deadlocked Supreme Court would be unable to bring finality to the presidential election before the Electoral College is supposed to formally vote on December 14, 2020. The delay could even extend until January 6, 2021, the date stipulated by law for the Electoral College votes to be formally counted, and the final decision announced. A ninth justice is needed to break a possible deadlock.
The timing for Senate confirmation hearings and a floor vote on President Trump’s nomination is tricky, with Maine Republican Senator Susan Collins and Alaska Senator Lisa Murkowski having already indicated their opposition to a floor vote before the election. Rather than needlessly expose fissures in the Republican Party and place pressure on vulnerable Republican senators running for re-election, Senator McConnell may well decide to postpone a final vote until after Election Day. The vetting process, one-on-one meetings between President Trump’s nominee and senators, and even the commencement of Senate Judiciary Committee hearings could get underway before Election Day, saving some time.
One fly in the ointment is if Arizona’s Republican Senator Martha McSally, who was appointed to fill the Senate seat previously held by John McCain, loses her race against Democrat Mark Kelly in a special election. Under Arizona law, Kelly could take office as early as November 30, trimming the Republican majority to 52-48. In that case, McConnell would have to move very quickly after Election Day in case he needs McSally’s vote. If McSally wins, the Republican majority will have more breathing space until the new Congress is sworn in on January 3, 2021.
No matter what, it is imperative to push back hard against the Democrats’ obstructionist tactics and to “fill that seat” before the left has a chance to seize control of the White House and the Senate.