The Supreme Court

“She led an amazing life, what else can you say? She was an amazing woman — whether you agreed or not — she was an amazing woman who led an amazing life. I am sad to hear that." President Trump’s initial reaction upon hearing of Supreme Court Justice Ruth Bader Ginsberg’s death.

With her passing, Nina Totenberg, an NPR reporter and friend, wrote in her obituary that Justice Ginsburg had dictated the following to her granddaughter Clara, "My most fervent wish is that I will not be replaced until a new president is installed." This statement was made immediately public by her family. With all due respect, that's not how the process works. She doesn't get to direct how her replacement is handled, as the seat is the peoples’ and not hers. 

There is no dying wish clause in the Constitution.  It does not dishonor the life and legacy of Justice Ginsburg to discuss the prospects for her succession after her death and during a Presidential campaign.  

Article 2, Section 2 of the United States Constitution states that the President shall appoint Justices to the Supreme Court with the advice and consent of the United States Senate. There is nothing in the Constitution that says the President has to stop being President in his last year of his term.

Twenty-nine times in American history there has been an open Supreme Court vacancy in a Presidential election year, or in a lame-duck session before the next Presidential inauguration. The President made a nomination in all of the twenty-nine cases. Democrat President Obama nominated Judge Garland in 2016.  The Republicans held the majority in the Senate and elected not to consider the nomination, as the vote would have gone against Garland anyway.  A lot different than the current situation.

It is political irresponsibility for Republicans to abstain from filling a vacancy when they hold the White House. Unless they are hampered by some law or traditional norm to prevent the nomination. That is currently not the case as there is no such law or custom known to abate the process. Choosing not to fill a vacancy would be an extraordinary act of political surrender by the GOP. It has never happened once in American history. There is absolutely no chance that the Democrats, given the same position of power, would ever reciprocate. 

The Democrats happily supported Senator Harry Reid changing Senate rules on judges when he was the Senate Majority leader in 2013. They changed the rules from super majority votes on judicial nominees to simple majority votes. It used to take 60 votes for a nominee to pass muster with the Senate, now it doesn’t.

This is the current rule in the Senate on nominations, the “Reid Rule” as it called, the majority decides when and who to confirm with regard to federal judges. That’s what happened in 2016 with Garland, in 2017 with Justice Neil M. Gorsuch, in 2018 with Justice Brett M. Kavanaugh, and that is what will happen with Trump’s nominee to fill the new vacancy.

President Trump has released a list of excellent potential Supreme Court nominees, women who will interpret the Constitution and not make laws from the bench. Among those under consideration are United States Court of Appeals judges Amy Coney Barrett, Alison Jones Rushing, Joan Louise Larsen and Barbara Lagoa. All brilliant jurists, graduates of the Nations’ best law schools. Apparently, Joe Biden, who said in July that he had a number of qualified black jurists that he would consider, now has stated that he would not release any names. Perhaps they are too radical, and he dare not make the list public.  

Now Speaker Pelosi, along with left wing members of her party have floated the notion, that they can impeach Donald Trump in an election year if he fills a Supreme Court Seat before election day…after all fair is fair, she implied.  You just can’t make this nonsense up.  There is no way a President can be impeached for following the Constitution. Radical Democrats are hell bent on a partial change of the Constitution to push their extreme policies if they win a majority in the Senate.  No surprise that much of the media wants to help them do so. 

Don’t doubt the media’s commitment to the Democrats. CNN commentator Don Lemon stated on air his frustrations with the following statement: “We’re gonna have to blow up the entire system.” Another classic example of bias is what the frontpage headlines of the Washington Post were when Justice Anton Scalia died, “Supreme Court conservative dismayed liberals”. Last weekend, Justice Ginsburg got the following headline: “A pioneer devote to equality”.

Justice Ginsburg always fought hard for what she believed to be true. Republicans can do the same, just as gracefully and with the same determination and courage she was known for. Perhaps her real dying wish, was for the health and happiness of her children and grandchildren.