On Friday, Supreme Court Justice Ruth Bader Ginsburg died. She had been in ill health for years, fighting cancer, but she chose not to retire from the Court. Had she retired during President Obama’s administration, her vacancy would have been filled with a liberal no doubt far more to the left than she, yet, probably believing as did so many, that Hillary Clinton would easily defeat Donald Trump, she chose to continue.
On Friday she lost the battle to hang on until the election. Democrats, wild with fear of another conservative strict Constitutionalist on the Court, are trying everything to prevent a nominee from being named and voted on by the Senate.
The radicals are calling for riots, burning, looting, and murder if the Senate moves to confirm a candidate. Alexandria Ocasio-Cortez and Nancy Pelosi are threatening to impeach the president (for doing his job?) or maybe William Barr (who as AG has nothing to do with the Supreme Court nomination process). The Washington Post is slyly suggesting that Judge Amy Coney Barrett, one of the top contenders for the vacancy, encourages sexual assault on college campuses because she wrote the majority opinion of a three woman court that said that an accused sexual assaulter on Purdue University’s campus was not given due process because the officials took the word of the girl over him because “always believe the woman” (unless the accused is Joe Biden or another Democrat). More moderate Democrat voices are claiming that the Republicans “set a precedent” by not considering Garland for the Supreme Court during Obama’s last year in office. Others are playing the sympathy factor, claiming that Ginsburg’s dying request was that the next president (hoping it was a Democrat) should fill her vacancy. But all of their foaming at the mouth and loud threats will not impede the process.
Firstly, the Republicans set no precedent in 2016 by not bringing Merrick Garland before the Senate for consideration in the months before the 2016 election. Senate Majority Leader Mitch McConnell humorously explained that they were only following the “Biden Rule,” so named after Joe Biden famously advised President George Bush that he should not nominate anyone to fill a vacancy on the Supreme Court during his last year in office. It was neither a rule nor a precedent, but the Republicans got many a chuckle out of throwing those words back in the Democrats’ faces. In fact, the Constitution states that the president “ shall nominate, and by and with the advice and consent of the Senate, shall appoint. . . judges of the Supreme Court.”
The word “shall” is generally understood to require action, while the “advice and consent” of the Senate is not so clearly defined. In 1975, then Democrat Senator James Arbourezk explained that while it is clear that the Senate must provide advice and consent, or lack thereof, on a president’s nominee, the Constitution cannot be seen “to state precisely just how that duty is to be exercised institutionally.” Thus it can be explained that the failure of the Republican Senate to consider Garland’s nomination was in fact its advice.
Historically, several Supreme Court vacancies have been filled during election years. The following information comes from SCOTUS blog, the very blog of the Supreme Court.
“The first nomination during an election year in the twentieth century came on March 13, 1912, when President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911. The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six.
President Woodrow Wilson (a Democrat) made two nominations during 1916. On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Rucker Lamar, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two. Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican. On July 14, 1916, Wilson nominated John Clarke to replace him; Clarke was confirmed unanimously ten days later.
On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932. A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932.
On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote.
On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Lewis Powell. A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero.”
In ten cases, however, the presidency was held by one party and the Senate by the other party. Except in the case of President Reagan’s nomination of Justice Anthony Kennedy, the opposing party controlling tthe Senate has blocked the nomination until after the election, just as Republicans did in 2016.
Democrats, who now demand the vacancy not be filled, had a much different take on the situation in 2016 when then President Obama nominated Merrick Garland and the Senate refused to even consider the nomination.
Joe Biden: “I would go forward with a confirmation process as chairman, even a few months before a presidential election, if the nominee were chosen with the advice, and not merely the consent, of the Senate, just as the Constitution requires”. He also said “As my record shows, I presided over the consideration of Justice Kennedy, Reagan nominee, who was confirmed in a presidential election year.”
Barack Obama: “We cannot tolerate a politically motivated, willfully negligent vacancy on the Supreme Court.”
And Ruth Bader Ginsburg herself: “There’s nothing in the Constitution that says the president stops being the president in his last year.”
As former president Obama pointed out, leaving a vacancy on thte Supreme Court, especially when the fallibility of mail-in ballots in this COVID year are a concern, could lead to a dangerous Constitutional crisis should an 8 member SCOTUS be forced to choose a presidential winner and end in a 4-4 tie.
There is no reason for the Republicans to fail to confirm the candidate which President Trump will not name until after Justice Ginsburg’s funeral in respect for her. In fact, they and the President would be doing what a majority of Americans, even a majority of Democrats want them to do. A Marquette University poll, conducted three days before Justice Ginsburg’s death, was released on Saturday. Its results are rather astounding. 67% of adults believe that a Supreme Court vacancy should be filled, even this close to the election. Among Republicans, 68% were in favor of confirmation hearings; among Independents 71% were in favor; and among Democrats, 63% were in favor of going ahead with confirmation. Every Senator should take note of this poll, since he or she has sworn to vote as his or her constituents wish.
I think America’s wishes are pretty clear.