U.S. Supreme Court Justice Ruth Bader Ginsburg died yesterday, Friday the 18th of September.
Everybody you knew that was a Constitutional scholar back in January, an amateur microbiologist this spring, and an amateur sociologist and civil rights historian this summer will now astonish you with their command of judicial norms and precedents… their mastery of which you may have forgotten since they wowed you with it back in the fall of 2018.
American politics was getting a little ragged around the edges already, but a supreme court vacancy just weeks before a presidential election, in a period of massive civil unrest during a global pandemic is going to turn things up to eleven.
Article II, Section 2 of the U.S. Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court and all other Officers of the United States, whose Appointments are not herein otherwise provided for…”
There’s no question that the president has the Constitutional power to nominate a justice to replace Ginsburg whenever he wants to. The senate may choose to provide or withhold their consent as they see fit, when they see fit.
Those are the rules of the great game Ginsburg’s death has set in play.
The left is going to do everything in their power to postpone the replacement until after the election, just as the right did when Ginsburg’s dear friend Antonin Scalia died unexpectedly in 2016. They’ll do it in hopes that, as happened in 2016, the power dynamics of Washington will flip in November and their side will get to nominate and confirm Ginsburg’s replacement.
The right is going to to do everything in their power to hurry the replacement through before the election, just as the left did in 2016, to ensure that their side will get to nominate and confirm Ginsburg’s replacement. The left was blocked by Republican control of the Senate in 2016; Republicans still control the Senate, so they have an advantage today that the Democrats lacked in 2016.
A lot of people are going to say a lot of very incendiary things. They are going to accuse one another of the most terrible things, and everyone is going to crank their rhetoric up to Defcon 1 (“Maximum readiness. Immediate response”).
Democrats and Republicans are going to accuse each other of hypocrisy: Republicans will remind Democrats that they wanted to force Merrick Garland through in 2016, and only didn’t because a Republican-controlled Senate blocked them. Democrats will remind Republicans that they justified their blockage of Garland by pointing to an upcoming election that was months, rather than weeks, away.
They’ll both be right, of course, but that doesn’t make either side guilty of hypocrisy: only of playing by the rules of the game to try and win it.
Alaska’s Republican Senator Murkowski announced yesterday that she would not vote to approve a nominee before the election.
Speaking to Alaska Public Media during an interview on an unrelated topic, Murkowski referenced the position she took when former President Barack Obama nominated Merrick Garland to the Supreme Court in March 2016. Then, she supported Republican Senate Majority Leader Mitch McConnell’s refusal to take action on Garland’s nomination.
Murkowski said that then, she felt “that was too close to an election and that the people needed to decide. That the closer you get to an election, that argument becomes even more important.”
“So I would not vote to confirm a Supreme Court nominee,” Murkowski said Friday, noting she had previously stated this position to reporters in recent weeks. “We are 50-some days away from an election, and the good news for us is that all of our Supreme Court justices are in good health and doing their job. And we pray that they are able to continue that.”
Easy for her to say: Senator Murkowski is not up for re-election until 2022.
Maine’s Republican Senator Susan Collins, on the other hand, up for re-election right now, “amid the toughest reelection fight of her career, would not say Friday night whether she would vote to confirm a replacement for Justice Ruth Bader Ginsburg before Election Day.”
It was Collins, you may remember, who pushed Brett Kavanaugh across the finish line during his 2018 nomination hearing. It was a fairly sensational moment in American politics, so here’s a chance to relive it:
The Democrats will naturally do everything in their power to force Collins and any other Republicans they consider vulnerable to withhold their consent from any nomination before the election.
The Republicans will naturally do everything in their power to prevent that consent from being withheld.
You may recall the extraordinary spectacle of those Kavanaugh hearings, in which the Democrats went so far as to grill the 53-year-old nominee, under oath, on phrases that appeared in his high school yearbook… phrases partisans across the left found highly questionable. Like boofed.
You may recall “witnesses” stepping forward to accuse the nominee of running some kind of a drugging-and-raping cartel in his suburban hometown. (You may not recall the most sensational of those claims later being recanted, because for some reason those recantations didn’t get quite the same publicity as the original claims.)
So when I say things are going to escalate to Defcon 1, I mean they’re going to get ugly, and personal, and horrible. And each side is going to blame the other for the ugliness. And the violent idiots out on the streets may well use the ugliness as justification for more violence.
There are only two possible outcomes: the system works, and (ugly as it may be), a nominee is named either before or after the election, by President Trump or President Biden, according to the rules set out in the Constitution, and the nominee is or is not confirmed by the Senate. And we move on. Or the system fails, and, given the toxic and supercharged environment we’ve already got, all bets are off.
At this point I think we should all of us be rooting for the system to work, because America is not a nation but a creed, and that creed is that we’re a nation of laws. Should we become anything else, then we’re no longer America, and the devil we don’t know will be infinitely worse than the devil we know.
So ignore all the rhetoric about morality and fairness and ethics and philosophy from both sides (neither of which has shown much real interest in such things these last few years), and keep your eye on the ball: it’s a political fight within a prescribed set of rules, and both sides are going to fight like hell to win because this is a political hill on which both sides are prepared to die.
I doubt that’s what you’re going to hear from the usual suspects here in Denmark: more likely we’ll hear the Democratic talking points parroted back as fact. But we’ll see: I’ve actually been surprised by the even-handedness of some recent Danish coverage.
I’ll close with an aside: among my wife’s first reactions to the news (and it was Herself that broke it to me when I woke up this morning) was this: “After watching what Kavanaugh went through, how many people are left who still want to be nominated? Who’d want to go through that hell?”