Sunday, September 20, 2020

The Supreme Court Curveball

Who would have expected anything less in 2020?

We have seen the House impeach a President in an election year.

We have seen a pandemic and unprecedented government actions in response to it.

We have seen those government actions lead to enormous economic consequences.

We have seen protests, riots and insurrection in the streets. These have not occurred due to the economic lockdowns but are supposedly due to institutional racism in cities that Democrats have controlled for over 50 years with police departments that are led by minorities.

We have seen a peace accord signed by two major Middle East Muslim countries with Israel that we were told four years ago was impossible to achieve.

We have now seen the death of a liberal icon on the Supreme Court 45 days before a national election.

Of course, that election is still to come as are another three months in a year that will be written about centuries from now in the history books.

What more do we dare expect for the rest of the year?

More specifically right now many are asking what will be the effects of the death of Ruth Bader Ginsburg on the national election?

Democrats are already apoplectic about the death of Ginsburg and the fact that the Constitution provides the power to the sitting President to appoint a replacement with the advice and consent of the U.S. Senate.

All you have to do is scan social media and you will quickly see threats of riots, threats to "burn it down", threats to pack the Supreme Court and threats to march to to the residences of Republican politicians to threaten them in their homes if the President and Senate do their constitutional duty.

In fact, Nancy Pelosi has even threatened to impeach President Trump again in order to delay a vote on the Supreme Court nominee if she has to.

Why would the death and possible replacement of one unelected jurist cause so much angst and anger?

I wrote about this over two years ago when Justice Kennedy retired and President Trump had the responsibility to appoint a successor.

This was a typical response at that time.

We saw they really meant it with the charade and circus that the Democrats put Brett Kavanaugh through during his confirmation process. 

Why is the Supreme Court everything for Liberals? 

I thought the Constitution was everything in The United States of America.

The Democrats know that without the Supreme Court "making law" they have little hope in realizing their progressive ideals. They have generally failed in establishing any of their agenda through Constitutional means. Most everything they care about in the last 30 years did not come from legislation or constitutional amendment but by the opinions of five Supreme Court justices. Look no further than abortion and gay marriage as prime examples. Or the affirmation of the constitutionality of Obamacare.

That is why the Supreme Court is everything to Liberals. Every new appointment to the Supreme Court that President Trump makes puts their agenda at risk. They know that they do not have the support of the necessary majorities of American voters to support and extend their progressive agenda. They do not want to follow the Constitution to get there. Our Founders wanted a clear consensus before we made radical changes to the rules that governed us. The Democrats simply don't want to wait and do the heavy lifting necessary to get what they want.

Democrats are adamant that the President Trump should not nominate a successor to RBG and the Senate should not confirm any new justice until after Inauguration Day in January, 2021.

The problem with this argument is that the American people already had their voice recorded. They elected Donald Trump with the understanding that he would serve a four-year term. They also elected the current sitting Senators in 2014, 2016 and 2018 who would provide the necessary advise and consent on any nomination during their six-year terms. Everyone knew when those votes were cast that there were likely to be Supreme Court vacancies that would need to be filled. 

Much is being made of the fact that Senate Majority Leader Mitch McConnell did not allow the Obama nomination of Merrick Garland to proceed to replace Justice Scalia in the last year of the Obama presidency.

However, that involved a situation in which the President and Senate were of opposing parties. The precedent strongly supported waiting for an intervening election. This article by Dan McLaughlin in the National Review explains that precedent.

The norm in these cases strongly favored holding the seat open for the conflict between the two branches to be resolved by the presidential election. That is what Republicans did in 2016. The voters had created divided government, and the Senate was within its historical rights to insist on an intervening election to decide the power struggle. Had there been no conflict between the branches to submit to the voters for resolution, there would have been no reason for delay.

In almost all cases involving a split in the parties in control of the Presidency and Senate the nominee was not confirmed if a nomination was put forth. This shows it was a waste or time and effort to proceed with a vote on the nominee when there is that division of power.


On the other hand, when the White House and the Senate were of the same party there is a very consistent record of nominations being made and being confirmed.

In total, there have been 29 vacancies created in the Supreme Court during election years. There has not been one time that the President has not made a nomination. Not once in American history.

It is fair to observe that most of this precedent dates back in time. Some might argue that Supreme Court appointments did not carry the weight that they due today. However, that makes my point above. Why has the Supreme Court become everything? It is because the Democrats have made it everything and it was never supposed to be that way.

Of course, the reality is that one does not need to look at historical precedent to decide what President Trump and the Senate Republicans should do with the decision to replace RBG.

All one has to do is ask what the Democrats would do in a similar situation?

There is no doubt about that.

A Democrat President together with a Democrat Senate would not think twice about nominating and confirming a Supreme Court Justice in these circumstances. 

In fact, Joe Biden stated this clearly in 2016 when he was arguing that the Merrick Garland nomination should be considered and voted on even with a Republican majority in the Senate. In fact, he stated they both had a constitutional duty to do so even if if was months before the election. The same Joe Biden had argued in 1992 the exact opposite as this Newsweek article points out.

Former Vice President Joe Biden declared in 2016 that if he were chairman of the Senate Judiciary Committee he would push ahead with the nomination of a Supreme Court justice "even a few months before a presidential election."

Biden penned a New York Times op-ed in March 2016—just weeks after the death of Justice Antonin Scalia—which accused Senate Republicans that year of neglecting their "Constitutional duty" by stonewalling President Barack Obama's Supreme Court nominee until after the November general election. Senate Majority Leader Mitch McConnell cited a so-called "Biden rule" as justification for delaying Merrick Garland's nomination, pointing to a 1992 Biden speech that demanded President Bush wait until after that year's election to appoint a Supreme Court replacement.

When you have been in Washington for 47 years it is difficult to keep you stories straight and not get raised on your own pitard.

What do I think is going to happen with the nomination and what will the effects be on the election?

The only thing I know for sure is that President Trump will nominate someone for the opening on the Supreme Court. He will stay true to his constitutional duty.

It will almost assuredly be a woman.

I have doubts whether the Senate will actually hold a vote on the nomination before the election.

The calendar seems to suggest that is unlikely.

The average time from nomination to confirmation for the last 9 justices has been 79 days. The fastest process was for Ginsburg at 50 days. On Tuesday, we will be 42 days from election day.

You can make arguments on either side as to whether this Supreme Court vacancy will be more helpful politically to Republicans or Democrats coming this close to the election.

Some argue that the threat to the ideological balance in the Court will motivate more Democrats to vote for Biden. That turnout will benefit the candidate that few Democrat seem excited to vote for rather than just vote against Donald J. Trump.

There are others who say that this is exactly what is needed to bring any reluctant GOP voters to the polls for Trump. They may not like everything about Trump but they know how important that Supreme Court seat is in blocking the liberal agenda.

There is one school of thought, that seems to be shared by several Republican Senators (Collins, Murkowski), that it is "not fair" to proceed on a vote before the election. Those who think this way seem to think that holding off will be viewed more favorably by Independent voters.

At one time I might have seen merit to that argument. However, that assumes that the other side would be fair-minded as well. That time is well past with the Democrats. We saw that clearly with the Kavanaugh nomination. The Democrats long ago forgot about anything to do with "fairness" in protecting themselves and advancing their interests.

It does not matter who Trump nominates, the Democrats will savage the nominee. They are not interested in any level of fair play. It doesn't matter if it is before the election, post-election or if Trump win re-election.

There are a number of advantages to moving now.

First, there is no guarantee that Trump will win or the Republicans will retain the Senate. Moving forward now may be the only time they can move forward. It would be foolhardy to not attempt to get their nominee to the Court confirmed while they can.

Second, it introduces another big issue in the campaign which means there is less media time to be spent on Covid, the economy, Russian collusion or whatever else the media would like to hang around Trump's neck. There is little downside for Trump in this regard as they are going to hammer him anyway. However, on this one he may win BIGLY.

Third, it puts the Democrats on the defensive. They can complain a lot about this but they don't control the agenda around the nomination. Trump has the power to nominate who he wants and the Republicans control the agenda and timetable for hearings and the confirmation vote in the Senate. There is little the Democrats can do but whine and complain.

Who is Trump going to nominate?

The names that you hear most often are Amy Coney Barrett, Barbara Lagoa and Joan Larsen. They are all Circuit Court of Appeals judges who went through the confirmation process fairly recently and presumably  have been investigated and vetted pretty thoroughly

If I was advising Trump I might suggest that he do something unconventional to throw a further curveball at the Democrats.

I would recommend that Trump put three names forward to the Senate and ask for their "advice" on the potential nominees. Trump would say that he is comfortable with any of the three but wants the Senate's input before making a final nomination. The nominees would each make the obligatory visits to the Senators for interviews and there also might be a limited public hearing with each.

In doing this Trump would specifically say to the Democrats that they may have issues with one of these but they certainly cannot be fair-minded by having a problem with all three. It places Trump in a position that is flexible and open to advice and the Democrats further on the defensive.

Having three real possible nominees would also mean the Democrats could not concentrate all of their "firepower" on one nominee. If they treated all the nominees like they did Kavanaugh it would be pretty obvious to any fair-minded American voter what game was being played.

It will be interesting to see how this all plays out.

To this point, I have not written very much about the 2020 election. 

A big reason for that is that it has been very hard to really assess where the election stands with so much going on in the country this year.

Back in July (100 days before election day) I wrote this.

It is almost impossible to predict what is going to happen in November considering what is going on in the country right now.

The pace of events is overwhelming. In fact, it would not surprise me if we have yet to see what historians will later point to as the most consequential issue in this election.

Ginsburg's death and the looming confirmation battle is just another example.

However, even considering this, the most consequential issue may still lay ahead.

There are still six weeks to go.

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