Bruce Thornton is a Shillman Journalism Fellow at the David Horowitz Freedom Center
The death of Supreme Court Justice Ruth Bader Ginsburg has occasioned the usual displays of progressive hypocrisy and flexible standards of decorum, not to mention the Dems’ scorched-earth tactics of vilification.
But the Senate Republicans can’t go wobbly at this critical moment. Donald Trump must nominate a replacement, and the Senate must confirm him or her, thus ensuring that even if Joe Biden somehow gets elected, the Supreme Court will have a 6-3 majority of youngish originalists on the court as a bulwark against the progressive project to dismantle the Constitution and “fundamentally transform” America into a technocratic “soft despotism.”
Once Donald Trump defied all predictions and defeated Hillary Clinton, the Supreme Court became the Democrats’ primary object of concern. Two vacancies filled by originalists have increased their angst. Ever since FDR threatened the Court with increasing its numbers, it has been the go-to option for progressives who stand little chance of their socialist policies and big state assaults on the Bill of Rights to pass muster with voters. Donald Trump’s improbable victory and judicial appointments have slowed that decades-long process, even though some presumably originalist justices like Chief Justice John Roberts have joined the progressives in legislating from the bench.
RBG, as she is known to progressives, became a particular worry once Trump became president. She was, as The Atlantic puts it, a “bulwark protecting abortion rights and a wide range of other progressive ideals on a conservative Supreme Court,” including issues like same-sex marriage and transgender rights that, like abortion, have no basis in the Constitution. More treacly was the Independent’s Holly Baxter, who keened, “Sometimes it felt like she was America’s last hope.” Such extravagance recalls Oscar Wilde’s quip, “One must have a heart of stone to read the death of Little Nell without laughing.”
It’s no longer remarkable that progressives will frankly admit that upholding the Constitution, the legitimate purpose of the Supreme Court in the first place, should be sacrificed and replaced with the advancement of progressive ideological aims. These goals are diametrically opposed to the highest law in the land and its foundational assumption to protect the freedom of states, civil society, and individuals–– and to leave controversial issues of conflicting mores and beliefs to be adjudicated by legislators elected by, and accountable to, the citizens.
Given Ginsburg’s importance to that long progressive cause to change or bypass the Constitution, the Dems’ allies in the media gave her a full secular saint canonization, with literary and cinematic hagiographies, not to mention the honorific “notorious” usually reserved for hip-hop stars. This flattery and embellishment of her stature in part was meant to encourage her to hang on to her seat until a Democrat was sworn into office in January 2020. There were other Democrats who were put out with Ginsburg for not resigning while Barack Obama was still president and could appoint her replacement. But the extravagant postmortem encomia for Ginsburg have dominated in order to increase the pressure on the President and the Senate to delay any appointment until after the election and a new president is sworn in
So Trump, of course, who delights in pushing the Dems’ many buttons, has swiftly announced there should be hearings and a confirmation vote “without delay.” Senate Majority Leader Mitch McConnell has long been demonized by Democrats for his refusal to consider Merrick Garland in 2016, then proceeding with the confirmation of Brett Kavanaugh before the 2018 midterm elections, not to mention his active role in getting more than 200 conservative federal judges appointed. He has already said any nominee “will receive a vote on the floor of the United States Senate.” So expect a furious attempt to browbeat and intimidate McConnell and Republican Senators running for reelection. The sappiest ploy from the Dems has been an alleged report from Ginsburg’s granddaughter that on her death-bed Ginsburg said, “My most fervent wish is that I will not be replaced until a new president is installed.” As the Wall Street Journal drily commented, Ginsburg’s “wish is not the Constitution’s command.”
Expect to hear a lot too about the so-called “Biden rule.” This “rule,” like most Senatorial “standards” and “norms” are a cover for rank politics. It was midwifed by Joe Biden in 1992. It holds than in an election year, when a party other than the president’s controls the Senate, the appointment should be delayed until after the election. Dems are now accusing McConnell of hypocrisy for proceeding with the Kavanaugh hearings in 2018. But the clause highlighted above makes clear that when the president and the Senate majority belong to the same party, the “rule” doesn’t apply.
In any case, all this chatter about “rules” and seeking “bipartisan” consensus is rhetorical camouflage for pure partisan politics. In reality it is based not on principle, but pragmatism. If the Senate and the president are members of the same party, then there’s nothing the minority opposition can do to stop the president from nominating, and the Senate from confirming a candidate to the court. Similarly, if the president and Senate belong to different parties, it’s obvious the Senate will not confirm or even hold hearings. As is eternally true in representative politics, each side will maximize the advantages of power if they can.
And that’s how it should be. As Barack Obama said, “elections have consequences.” All the talk about “bipartisan consensus” and “reaching across the aisle” is rhetorical cover to hide the fact that politics is about power, as it has been since the birth of the Republic. Since the Sixties the Democrats have better understood this reality and have governed in accordance with it, whereas too many Republicans, puffed up with loft “principles” and technocratic assumptions about “solving problems,” have too often submitted to the Democrats’ bare-knuckled politics and ad hominem insults like “racist” and “sexist.”
Donald Trump has changed that dynamic. Part of the bipartisan NeverTrump hysteria stems from Trump’s rejection of “norms” that have favored the Democrats and their anti-Constitutional ambitions. Except for times of war, such norms like “bipartisan consensus” is a sign of danger, for it bespeaks a coalescence of powers that throws out of balance the Constitution’s mechanism for separating government powers and countering factional ambition with ambition, so that no one faction can accumulate enough power to compromise the political freedom of the states, civil society, and individual citizens.
Progressivism seeks to dismantle the Constitution because those checks and balances interfere with its ambition to concentrate and centralize power into agencies and bureaus staffed by technocrats unaccountable to the people. The Supreme Court is the tool they’ve successfully used to accomplish that aim, for it is by design a board of “experts” appointed for life and accountable to voters only through the nominal power of impeachment, which in practice is a paper tiger––only one Supreme Court justice has ever been impeached.
But the Court as a whole is accountable through new appointments and the elections that select which party will make and confirm the appointment. When the people have elected a president and a Senate majority from the same party, and there is a vacancy on the Court, it is not just the right, but the duty of these two branches of government to appoint at any time a justice who understands the proper function of the Court: not to legislate, but to defend the Constitution.
The Supreme Court along with district and appellate courts, then, are critical for any effort to stop the erosion of the Constitution abetted by too many justices who think they have the power to create law without the assent of the voters. That’s why this current vacancy crisis is perhaps the most important of Trump’s tenure. A successful replacement of Ginsburg with a reliable Constitutionalist will mean a solid, though sometimes porous, 6-3 majority that can suffer occasional defections but still prevail. Even if Trump loses the election, this legacy will for years remain a defense against progressive judicial adventurism.
And don’t forget, we know that the Democrats are pushing for mail-in ballots, which are much easier to manipulate and meddle with, and which give a pretext for delaying the results on election night so that, as the gangster Rocco in Key Largo explains to Bogie, they can count the votes and keep counting them until they turn out right. If the contested election ends up, as it did in 2000, in the Supreme Court, a 6-3 or even 5-3 majority, if Ginsburg’s seat remains vacant, gives the Republicans a better chance of thwarting such designs.
All we need now is for the President to choose a qualified originalist, ideally a black woman, and for the Senate to stiffen its spine and confirm him or her. It’s no time for going wobbly.