Condolences and prayers go out to the family and friends of Supreme Court Justice Ruth Bader Ginsburg. The death of a Supreme Court justice always generates a contentious political atmosphere surrounding the replacement nomination and confirmation. But, this one will almost certainly ignite the most explosive judicial process in our history.
Over the recent months, I have thought our nation couldn’t be more divided. What could be worse than the combined bashing of the president, the racial strife, the riots, the anti-law-enforcement acts, and the fiery presidential race. Well, we just learned what could be worse. The next month-and-a-half will see the aforementioned egregious issues grow in magnitude while the justice nomination and confirmation pour fuel on the fire.
President Trump, without a doubt, has the constitutional right, further, the obligation, to nominate a replacement justice without consideration of the approaching election. The Senate, likewise, has the constitutional right, again, the obligation, to decide on confirmation of the nominee. The Democrats will decry with a vengeance such a constitutional action.
The principal argument of the Democrats will be the perceived precedent set by the Senate in 2016 by its declining to confirm President Obama’s election year nomination of liberal-leaning Merrick Garland to replace conservative-leaning Antonin Scalia. The Republican majority Senate simply didn’t schedule the vote. After Trump was elected, he nominated conservative-leaning justice, Neil Gorsuch, who was confirmed by the Senate. There is essentially no difference in the current situation and that of 2016. Both cases were according to the Constitution. In each case, the president nominated and the Senate decided whether to confirm. In 2016, the Senate chose to reject confirmation; in 2020, the Senate can choose to confirm. Both actions are constitutional, and both are by duly elected representatives of the American people.
In all 29 cases of past election year vacancies, the president nominated a replacement, and the Senate acted on it. The Democrats have presented many quotes of 2016 conservatives opposing election year justice replacement. There are just as many quotes from 2016 liberals advocating election year replacement including then-Vice President Joe Biden, Senator Schumer, and Justice Ginsburg. That’s just politics.
One difference consideration between the 2020 and 2016 situation is that, in 2016, the people’s 2012 election of a Democratic president and 2014 election of a Republican majority Senate left their will regarding the justice nomination somewhat in question. The people’s will in the current nomination is obvious from their electing both a Republican president and a Republican majority Senate. Delaying the process in 2020 would be ignoring the will of the people who voted for this Republican president and Senate majority largely based on anticipated Supreme Court vacancies.
In the upcoming confirmation process, the rub is going to be with a few Republican senators in very close races, particularly those in liberal states. For them, taking a strong conservative stance on confirmation could lose their seat, and the Senate could lose its slim majority. Another issue is the time frame of confirmation. Getting a nomination and confirmation by election day is very optimistic. Of course, the Trump presidency and the senate majority hold until January regardless of the election outcome. But, depending on how America votes, confirmation by a lame-duck senate would be even more contentious, but totally constitutional.
So, get ready! Hang on! If you thought you were witnessing a political firestorm now, standby for the perfect firestorm. Pray that the antifa rioters and killers don’t see this as a new cause to kill more cops, burn more buildings, and loot more stores.