Fact: Liberal jurist and Supreme Court Justice Ruth Ginsburg died on September 18. That event, not expected prior to 2020 elections, has thrown a wrench into the works. Most immediately, it puts pressure on Senate Republicans to seat a nominee, while preserving their majority.
Fact: President Trump intends to nominate a woman to replace Ginsburg. The nominee will be qualified and judicially conservative, meaning apt to construe words in the Constitution strictly, not filling in blanks, legislating, getting creative, or judicially activist – as Ginsburg was.
Fact: A concern of conservatives – and liberals – is how the appointee will interpret constitutional provisions and decisions, as well as what weight she accords stare decisis or precedent. Of special concern is how she sees the 1973 Roe v. Wade decision, which creatively inferred a constitutional right to abortion.
Fact: The contest will be bitter, as Republican appointees outnumbered Democrats 5-4 before Ginsberg died. The new mix of 6-3 could roll back activism. To Republicans, this is promising – worth risking the Senate. To Democrats, it is a perilous, as they revere activism and Roe.
Fact: The 53-47 Republican-controlled Senate will vote on Trump’s nomination. See, https://www.politico.com/news/2020/09/18/mcconnell-vows-senate-will-hold-vote-on-ginsburgs-replacement-418021. The vote could be before or after elections, late as January 3rd.
Fact: While a pre-election vote allows deliberation, it imperils moderate Republicans, like Susan Collins of Maine, Thom Tillis of North Carolina, and Cory Gardner of Colorado. If forced to vote pre-election, some may balk. Leadership must count carefully, as losing 3 would require Vice President Pence as tiebreaker; losing 4 would scotch the nomination.
Fact: Conversely, putting the vote off until after elections presents difficulties. Time would be short; Democrats would delay. If Democrats won the White House or Senate, they would argue legitimacy requires no vote. They would pressure Republicans, arguing the new President should nominate, and new Senate confirm. These obstacles could be overcome, but downstream effects on nominations, judicial legitimacy, and possible court-packing – could be serious.
Fact: Historically, a nominee by a President of the same party has been confirmed in an election year, while one presented by a president of the opposing party has not. Thus, in February 2016, when Justice Antonin Scalia – a Republican – died, President Obama nominated Merrick Garland to replace him. A Republican Senate did not vote. Trump won in 2016, and Neil Gorsuch was then nominated and confirmed.
Fact: This distinction is challenged by Democrats, who argue any nomination in an election year should wait. But that puts the seat in double jeopardy: If Trump wins, but Senate goes Democrat, that nixes the confirmation. If Biden wins, regardless of Senate control, the nominee becomes Biden’s.
Fact: The Senate faces a dilemma. They can vote on Trump’s nominee now, putting future control of the Senate in jeopardy. That would seat a conservative – changing judicial history – but might trigger court-packing if Biden won and Senate flipped. Or Republicans could put off the vote, giving moderates a pass but risking post-election pressure. Finally, they could allow moderates to vote “no,” yet squeak by with enough votes pre-election to gild the lily.
In the final analysis, peripheral facts play big. If Trump’s pick is supremely qualified, and stands up well to scrutiny, one or two Democrats might flip, like conservative Joe Manchin of West Virginia or endangered Alabama Senator Doug Jones, who might pull a Sun-Tzu.
Another peripheral fact is wild polling. If a moderate felt they could vote yes, they might accede to a pre-election vote. Of note too are the “dying words” of Ginsberg, who reportedly said she preferred a vote wait until the next president was seated.
Most ominously, Democrats threaten to pack the Court if Biden wins and they get the Senate. That prospect is interesting, sure to stir opposition. It could hurt eventually Democrats, while fracturing the court, upending precedent, and undermining the legitimacy of decisions.
Two final facts about court-packing. Franklin Delano Roosevelt tried, and it backfired. He thought he could push six justices onto the Court, politicize it. The move almost cost him everything – domestic legislation, support for “lend lease,” reelection. The idea burned him.
Finally, little mentioned, Ginsberg was strongly opposed to court packing. In 2019, she was aware of the implications, said: “Nine seems to be a good number, it’s been that way for a long time,” adding “I think it was a bad idea when Franklin Delano Roosevelt tried to pack the court.”
Pressed by National Public Radio, she got precise: “If anything would make the court look partisan, it would be that – one side saying, ‘when we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’” No, that is a bad idea. See https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive.
So, if we are to take the Justice’s words into account, perhaps Democrats eager to tip the Court should reconsider FDR and Ginsburg – both of whom disfavored court-packing. If court-packing is politically untenable, it goes away. If court-packing fades, when should they vote?
In the end, President Trump’s nominee must be seated. The debate around that nominee will froth, regardless of whether the vote is before or after. The issue, and implications for abortion, Obamacare, immigration, national security, and a host of legal issues, is significant.
If Senate Republicans can explain their position, and afford to lose one or two votes, the issue should be resolved fast. If fear of reelection dominates Senate Republicans, they might consider the prospect of lose-lose, win-lose, and win-win. If they wait until after the election, they may lose high ground, critical time, Senate control, and the White House, causing momentum to fall back on them, gaining absolutely nothing – including no new seat.
If they vote pre-election, they should win, take the issue off the table, leave a legacy, add support to the base – even if moderate Senators must explain. Net-net, this is a tough one, but action beats waiting – and if the election should by a harrowing mishap go to the Supreme Court, the composition will be … different. Just a thought.
Like everything the gop does. They talk the talk. They don’t walk the talk. I’m tired of voting 4 spinless gop’s. If i don’t c a good effort i won’t vote republican again neaningthey only have 37 days 2 grow 1. Does anyone think they can do it. I don’t
BOO HOO EVERYONE IS MAKING BIG DEAL OUT OF THIS OLD LIBERAL SOCIALIST ANTI RELIGON PRO BABY KILLER AND A WHOLE BUNCH OF CHIT !!! I SAY NO GREAT LOSS AND GOOD RIDDENCE SHE SHOULD HAVE TAKEN A DIRT NAP A LONG TIME AGO !!! NOW ITS TIME FOR THE GOP TO ACT LIKE THE HAVE A BIG SET OF BALLS !
If you consider the opposition, the answer is obvious – nominate the best candidate the day after Justice Ginsburg’s funeral, accelerate the customary Senate courtesy visits by using COVID-19 as an excuse to make virtual, instead of most in person visits, have Lindsey Graham limit Judicial Committee questioning and debate to a typical Senate 3 day week, then move to the full Senate for a vote AS LONG BEFORE THE ELECTION AS POSSIBLE. Why? Because each and every Democrat and most anti-Trumpists assume Trump will nominate someone they’ll hate. Actually doing so won’t cost Trump or the Republican Senators any votes they haven’t already lost, but voting on the candidate BEFORE the election might motivate Republicans who are dissatisfied with or suspicious of their waffly Senators (like Collins and Gardner) to get out and vote to keep them in office. Trump and the Senate aren’t going to lose any Democrat votes, they were lost long ago, but acting quickly and decisively might win them some Republican and Independent voters who otherwise would stay home and sit out this election.
“(T)he “dying words” of Ginsberg, who reportedly said she preferred a vote wait until the next president was seated” – not “until after the election”, did that mean that she wanted to wait another four years or did she mean that “the fix was in” and there would be a next president? I hardly think that what she wanted should be taken into account due to her often questionable attempts to reshape the Constitution.
This is a very simple and straightforward issue. It is the President’s DUTY to put forth a nominee to replace Ginsburg and the Senate’s DUTY to verify and confirm. All this as soon as can be done once the seat is vacated. If the left feels cheated just take a look at the stuff they’ve done, eg. Palosi in the House of Representatives:(
I have hoped for a long time for the Republican Party, of which I am a long time member would for ONCE show a spine worthy of their words. How many times have the Democrats pushed the Republicans around no matter how large the Republican majority? When will the Republicans finally grow a pair so to speak and fight fire with fire? Obama nominated a justice just prior to him leaving office and the Senate was held by Republicans who did not confirm that leftist choice by perhaps the most crooked President of all time so why cannot Trump? And does nobody find it strange that, unlike real human beings whose last thoughts are about loved ones, regrets and successes, friends and family, Ruth Ginzburg supposed last wish was of such low form that it was based on politican posturing? If even true does one non elected individual in a country of 350 million somehow devalue what the Constitution calls for which is for a sitting President to put forth a successor Justice and then for the Senate to advise and consent on that nominee? No. We all die and no life is more worthy than another in the eyes of God and in this country the Constitution, the backbone of our countries existence is more important than the overheard by someone hearing about a supposed morally decrepit last wish if indeed such holds any truth. If the former Ms Ginzburg just barely fell short of being able to walk on water can anyone really believe that her last wish was one based on vapid politics? If one were to believe such a wish it holds such little relevance simply because of the puerile nature of its content.
With the threatened street violence that is to take place does occur and the ballot harvesting which has already been proven to have so many failures when it comes to honesty do we not need a full Supreme Court if they are to finally have to decide the outcome of the upcoming election? I say yes and so does the Constitution as well as precedence. This is hardly the first time this very incident has occurred in the latter portion of a Presidents term. One must simply refer back to the morally decrepit Mr. Obama with the concurrence of his Vice President, the now mostly missing Joe Biden.
Maybe the Republicans should pack the court before the Dim’s do it.
If the dems pull another impeachment caper, McConnell should say that it will not be considered by the senate until after the election.
Hopefully Romney and Merkowski will turn democrat instead of faking their allegiance. The democrat senate consists of those who call themselves
dems plus Romney and Merkowski. So there are 51 repubs and not 53. Trump not has to battle the dems but a substantial portion of his own
party. What I love about the senate voting on the new justice during the days prior to the election is that all voters will have it fresh in their minds
as to the party their senators are aligned to.
The Democrats have something on Roberts. He’s a weak link and solid lock for the libs.
The DemocRats (Communists) have insulted every American Citizen by giving their nomination to a dementia patient and a left wing failure and still expect you to vote for them! If the Communists win this election with this ticket, they will ensure that there will never again be a true election in their United Soviet States of America!! Join the Trump Movement – The American Revolution Version 2!!! Become a Counter-Revolutionary!!! Stand-up for America!!!! Remove Every DemocRat!!!!!
Most Europeans came to America to get away from the “Swamp in their Country”. Thanks to the DemocRats, now we have our own Swamp which is even more controlling and dictatorial!! Join the Trump Movement – The American Revolution Version 2!!! Become a Counter-Revolutionary!!! Stand-up for Our Republic!!!! Remove Every DemocRat!!!!!
The National Education Association and the American Federation of Teachers are COMMUNIST organizations that are teaching OUR Children Anti-American sedition! Members of those UNIONS should NOT be allowed to Teach!! Join the Trump Movement – The American Revolution Version 2!!! Become a Counter-Revolutionary!!! Stand-up for Our Republic!!!! Remove Every DemocRat!!!!!
American History: Every time a SCOTUS vacancy has occurred in an election year and the Presidency and the Senate are held by the same party, the vacancy was filled that year! Bullies are crybabies. The Crybaby DemoCommies are trying to bully all of America to get their own way!! Push back against the bullies!! Join the Trump Movement – The American Revolution Version 2!!! Become a Counter-Revolutionary!!! Stand-up for Our Republic!!!! Remove Every DemocRat!!!!!
It is imperative that a conservative judge be seated at all cost. This is more important than any Republican politicians career since the seated justice will be there for life which would impact critical decisions for a long time. Protecting the Constitutional Rights such as the First and Second Amendments is paramount to secure our rights for the future and without them we will all be at the mercy of the radical left. The court can hold the line against a Democratic majority in the Senate but only if we have a conservative majority in the Supreme Court.
Where did the socialist/dems get the idea they can make ALL the rules? they are bound by the same rules as everybody else, they cannot change the laws to fit thier sicko ideolagy, they are civil servants, nothing more, they are in fact total failures as politicians and as human beings as such they are long over due for replacement, too long in the swamp and they have lost touch with reality. RED, KAG, SUPPORT LAW AND ORDER, TRUMP2020
POTUS Trump has never had a majority in the Senate, with at least three RHINO’S since McCain is gone. So where is his advantage? Plus the fact that Roberts has turned way left.
Get it started! Why in the world would the Republicans do ANYTHING that the Dimwits are demanding? STOP BEING SO NICE!
Glad she is expired and get that vacancy filled NOW ! ! ! !
Precedent is quoted (and promptly skewed by the left). Unfortiunately, we live in unprecedented times. The Dem’s have become a “win by any means necessary” party and intend to permenently rule and will no longer tolerate the status quo gentlemen’s agreement to share power with Republicans. This is an existential fight and one party is going to lose. Then Dem’s know this and the Rep’s don’t. This is the problem. The Republican’s don’t know that they are in a fight for their very survival. If the Dem’s win this fall, it’s all over, and any nomination or even confirmation won’t matter. The Dem’s will pack the court and do whatever is necessary to win the court(s) back to their side and destroy the Constitution. So you can’t worry about what the Dem’s will do if we do this or that. It doesn’t matter. We must win. Besides, this is going to be a hotly contested election likely to have numerous rulings from the high court. Having a bunch of 4-4 decisions would be disasterous for the country.
If you hate The United States of America, vote for Democrats.
The President has the right to appoint a new judge anytime He feels like and the Senate and only the Senate has the right to act on it. Do not give into the lefts attempt to say otherwise.
We’ll need a SCOTUS majority knowing the malfeasance, sedition and treason the Dems have already spread out. Iliam Omar just published a new book in which she she states she’s going to use all the power of her religion, sex, etc. to burn this place down.
There is nothing blocking the president from putting up a nominee to SCOTUS. Since Republicans hold both the White House and control in the Senateit would be foolish and stupid to not proceed. As for the RINOs who want to wait all that is needed are 48 votes to confirm since the Dems can only muster 47.
After a speech given by Justice Ruth B. Ginsburg later in 2016, an attendee asked her if the Constitution prevented the President from filling the seat. Ginsburg’s response was:
“As you know, the President has the authority to name appointees to the Supreme Court, but he has to do so with the advice and consent of the Senate.
…The President is elected for four years, not three years, so the powers that he has in year three continue into year four, and maybe some members of the Senate will wake up and appreciate that that’s how it should be.”
I am sick and tired of these moron politicians DEMANDING that “WE THE PEOPLE” do what they want because it is “good”for thier party, that is not what they were elected to do, they were elected to SERVE the people because they are “CIVIL SERVANTS” they exist to serve US THE PEOPLE, there is nothing in thier job description that says they should serve only people that agree with thier political view and ignore the MAJORITY OF “THE PEOPLE. RED, KAG, VOTE TRUMP AND REPUBLICAN, VOTE FOR LAW AND ORDER!!
Definitely do the replacement NOW! After all, the dems had no problem when FDR was President, they merely added two more positions to the court to get their way! Also Social Security as created by FDR and fellow corrupt friends (not enough set aside in taxes and no “lock box fed account”) was nothing more than a Ponsey(sp?)) scheme to defraud the not so educated and gullible for their votes. FDR even admitted it in back room discussions by saying, “When the public finally realizes it, we will be long gone and then there is nothing they can do to us”. Oh, as far as precedence is concerned, it is not a law. Precedence is only brought up by the dems as a way to convince the NOT SO EDUCATED and GULLIBLE, in order to fraudulently force their way.
The article left out one very important consideration. Given Chief Justice Robert’s inconsistencies, if the election were contested in court (likely) and if it get to the SC (likely), the court could split 4-4. The whole election could run on that vacant SC seat.
Ted Cruz and all the heads on the left will explode
Never in my life time have I heard of such blatant
Nonsense! All the democrats think about is power and control! The Republicans have to stand up to them! It’s now or never! Please, Republicans, support the President! We maybe on the brink of civil war if the dems screw up the vote in November. We need the Supreme Court seat filled to resolve any issues. Not to mention the killing of how many more innocent babies!!!!! As The people chanted in N.C. FILL THAT SEAT!!!
Do it now!!!!’
A couple of other issues wrap into this…
If Trump makes his nomination today or tomorrow and Graham sets Judicial Committee hearings soon after (FBI background check should not take long as it was recently done on Barrett and Lagoa), which he’s now said he’ll do promptly, this may pull The Kamala out of campaigning to her spot on the Judicial Committee.
If no appointment by Nov 20, the 8 Justice Supreme Court will be hearing arguments on the constitutionality of the Affordable Care Act which currently has been repealed by the 5th Circuit. A tie in the SC will allow the 5th Circuit’s findings to stand.
Out of respect of Justice Ginsburg, and her total commitment being a member of the Supreme Court, allow family and friends to mourn her passing. After that it is full speed ahead.
How sad the Republican Senators are not as committed to their party as the Democrats are.
Good morning everyone..
One thing I do not see, unless I missed it, is that the stated intention of the Democrats is to contest the election results, otherwise why would they already have 600+ attorneys ready to go.
The election will most likely wind up in the Supreme Court so, unless you want domestic and constitutional crisis brought on by a possible 4-4 tie, you need the ninth justice to break any tie.
This is a legitimate reason for the nomination, hearing and confirmation vote. It is needed to protect the election process.
This position needs to be filled by Constitutional standards. What does the Constitution say? We the citizens of this country want a government that cares more about the country than themselves. If they are doing their jobs Constitutionally then they need to stop worrying about elections. Democrats need to STOP threatening this country just cuz they can’t always get their way! STOP acting like children and do what they all swore to do – ABIDE BY THE CONSTITUTION!
The Trumpster should nominate his choice of judge for the SUPREME COURT today if possible and then have the Senate vote on it tomorrow if possible and then see what liberal senators from the REPUBLICAN PARTY choose not to vote on the selection. If they balk in any way my hope is the people of that state throw them out on their ass.Also with 50 votes the Vice President Pence can cast the deciding vote/THE TIME IS RIGHT NOW.
Interesting! I think the President should “just do it”. Better for our country.
I Believe his will be a great way for the Senate to retain it’s majority! The Silent Majority will take notice and vote favorably!! The Senate need to VOTE the WILL of We the People that put them in office!!
Not a dilemma at all, nominate and confirm a conservative to the Supreme Court, the heck with the useless democrats,We the people elected a Republican Senate majority for exactly this reason.
DO YOUR JOB!
If the least reliable Republican Senators, Collins and Murkowski, are so RINO that they won’t vote to confirm a qualified constitutionalist appointee to the Supreme Court, their positions aren’t worth protecting. If they can’t explain a favorable vote to their voters, they will lose regardless. We should not forget that these two are so lacking in usefulness that they voted with Democrats to PRESERVE OBAMACARE.
This is probably the most naive statement you’ll see here. But, I’ll say it anyway. Shouldn’t justice be blind?? Not liberal or conservative. Why can’t these supposedly educated people put party politics aside and base their judgements on law and the constitution?
As I understand it, Cory Gardner is up against the beloved “moderate Democrat” ex-governor for two terms John Hickenlooper. If Gardner stands any chance of keeping his seat his choice is crystal clear.
All DIMMs on national level are THUGS. If you think otherwise, name one who has condemned the rioters BY ORGANIZATION! Condolences to Ginsberg’s family BUT she did not revere or honor our Constitution. She recommended the South African constitution to a newly-formed country–ridiculous. She performed a “gay” wedding while the Court had a case under review. She should have recused herself.
Nominate and vote on a constitutionalist ASAP. Ignore the paid-for charges from the snakes on the left. No more BS like they did to Kavanaugh !
Don’t wait! Select a nominee for SCOTUS and deliver to the senate for approval! This is the constitutional authority of the president and senate! Unlike the phony unethical and illegal impeachment, this is a legal requirement of the president! Don’t submit to the bullies of the democrat party! Get it done!
America is in an insurgency, and faces in this current era, all out social warfare. The Democrats are not attempting to merely bring a Sweden style socialism to the United States. The end goal for Democrats is what was begun in the 1950s that McCarthy paid a high price for identifying: Communism. Republicans MUST VOTE AND SEAT a Constitutional cleric to the SCOTUS NOW… or the nation will face the ultimate loss of its Constitutional governance. No Delay, The Senate MUST act NOW.
A brilliant individual from West Virginia once told me that “There is no fair way to lose.” Nominate,discuss,VOTE FOR CONFORMATION ASAP. Don’t lose the high ground. If you are a Senator that feels that your position is in such jeopardy that you may not be reelected,maybe your are not performing very well for your constituents. If this vote is your last, make it count for the future. Take one for the team. MAGA/KAF/KAG 2020.
They are hoping for a Democratic Congress to veto all conservatives
There is NO dilemma. Following the constitution & history dictates an appointment to the Supreme Court. Add to that, the Dems have said repeatedly this election will be decided in the court. This means all the more reason to not have a vacant seat. This is not difficult. It’s only difficult for those wanting the seat left vacant for nefarious reasons.
The bottom line is that constitutionally, federal courts do NOT have the authority to create or change laws. That responsibility belongs solely to the legislature even though Ginsberg disagreed. Therefore, activist judges are exceeding their constitutionally limited powers and should never be nominated or confirmed to the bench. President Trump is still president. He has maintained a list of candidates and should nominate a solid constitutionalist as Ginsberg’s replacement. Ginsberg herself back in 2016 said that Obama had that power to replace Scalia during an election year even though Obama was a lame duck, and she was right, even though the Senate refused to confirm Garland which was their right. I hope Trump nominates a good replacement for a badly flawed Ginsberg and that the Senate confirms that pick prior to January. This is not a conservative/liberal issue. It’s a constitutional issue about respecting laws as written and intended. Fail to do that as activists do and the law really means nothing at all because it can change at the whim of an court. The law must be set on bedrock, not shifting sand.
Why on earth should the Senate have a dilemma as to when or whether to vote to fill the Supreme Court vacancy? It’s the President’s right and duty to nominate someone and it’s their right and duty to help him fill that seat ASAP. We NEED the full Supreme Court in place and anyone standing in the way of that has an agenda – that isn’t in the best interest of America.
Well reasoned!
Let’s say Trump wins. Socialists have said they are going to tie up the election with lawsuits. Its been publicly stated that SCOTUS could decide the outcome.
You want the Court to be 8 members or 9 if that decision must be made?