HOLD OFF ON THE SUPREME COURT NOMINATION…AND OTHER QUICK THOUGHTS ON THE DEATH OF JUSTICE RUTH BADER GINSBURG

 

9/19/20

 

As all of you know, Justice Ruth Bader Ginsburg lost her long and painful battle with pancreatic cancer last night.   She was clearly trying to hold out until our country had at least a Democratic president and, preferably, a Democratic senate, but there are things even the best and brightest of us cannot delay.   Here are four thoughts on Justice Ginsburg’s passing:

 

·         Justice Ginsburg deserves all the accolades she is receiving and will doubtless continue to receive over the next several days and weeks.   Even those of us who disagree with her approach to the law, and who certainly disagree with her politics (which, like the politics of all our justices nowadays, were quite transparent) must admit that she was a titan of the court.   If she and her great judicial foil, the late and great Justice Antonin Scalia, could show mutual respect, and friendship, we should all do the same.   Yours truly, for all the intensity of my political ideas, looks upon the Scalia/Ginsburg friendship as a quaint throwback to the waning days of political civility that should be anything but quaint.

 

·         President Donald Trump and Majority Leader Mitch McConnell should hold off on nominating a replacement for Justice Ginsburg.  After refusing to confirm Merrick Garland, President Barack Obama’s 2016 nominee to fill the Court vacancy left by Justice Scalia’s death, because, the argument went, it was so close to the next presidential election that the next president should make the Court pick, it would be nothing short of blatant hypocrisy for the Republicans to insist that President Trump fill the Ginsburg vacancy at this time.   Judge Garland was nominated in March of 2016, nearly eight months from the presidential election of that year.   It is now more than midway through September, within six weeks of this year’s presidential race.  

 

Senate Judiciary Chairman Lindsey Graham, who occasionally masquerades as a conservative but in unceasing in his Party loyalty, agreed with my side of this argument back in 2018, arguing that if a Supreme Court vacancy were to come up in 2020 and the primaries had started, he would hold the nomination until after the election.   But he has changed his mind; in May of this year, he argued that the situation in 2020 is different from that which prevailed in 2016 because now the party that holds the presidency also holds the senate.   But that is a canard.  The only difference lies not in the propriety or advisability of the decision but in the ability to implement that decision.

 

Yes, yours truly would love to see, say, Amy Coney Barrett nominated and confirmed, and I understand power politics; after all, I grew up in the 19^th Ward in Richard J. Daley’s Chicago.   But I also recognize hypocrisy, and a Republican rush to nominate and confirm even the most worthy and ideologically aligned new Justice would reek of hypocrisy.

 

·         If both parties needed a further reason to fire up the base, they just got one.   Yes, everyone knew that Justice Ginsburg, had she survived, would have resigned right after the election if President Trump were somehow re-elected or right after the nomination should we be confronted with a President Biden, which still looks to be the case.   But now the vacancy is glaring and has been moved to the forefront of the campaign.    Further, given the (Anthony) Kennedyesque voting pattern of Chief Justice John Roberts, this next pick is likely to be the swing vote the conservatives didn’t think they needed after the ascension of Justices Gorsuch and Kavanaugh.   The Supreme Court has nearly always been a hot issue in presidential and, to a somewhat lesser extent, Senate campaigns.  It is now especially so this year.

 

·         Perhaps this is just a reiteration of the first point, but, as tempting as it is to leap right into the politics of Justice Ginsburg’s passing, a temptation to which yours truly has succumbed, let’s all take the time go give the Justice her due; she was really something and will doubtless hold a prominent place in history.   And, as is always the case in such situations, remember to say a prayer for Justice Ginsburg and her family.