The left is in a flurry of hysteria over the vacancy of a Supreme Court Justice seat by way of the death of Ruth Bader Ginsburg, who passed away after a long battle with pancreatic cancer on Friday at the age of 87.
Naturally, barely bothering to pay homage to this “icon of women’s rights,” (millions of unborn female babies may feel differently, but I digress) they’re already throwing a fit over the potential that President Donald Trump may be able to squeeze in a confirmation for her replacement.
Ginsburg, of course, had 8 years during which she could have retired under President Barack Obama, giving the most progressive president in our history a chance to get a third SCOTUS pick.
It was nonetheless her dying wish (allegedly) that she would not be replaced until “the next president is installed,” according to her granddaughter.
Never the stalwart defenders of the Constitution, and certainly not when it comes to anything having to do with the Supreme Court, the Democrats have been treating these alleged dying wishes of the Justice as Gospel truth not to mention that there is no dying declaration clause to abide by a Justice’s wish about their replacement anywhere in Article III. It belongs to the President under Article II.
Of course, they’ve also been quick to point to the fact that Senate Majority Leader Mitch McConnell opted not to vote on an Obama nominee to replace Justice Antonin Scalia back in 2016.
There are a few problems here.
To begin with, dying wishes don’t supersede the Constitutional duty of the President of the United States to select a Supreme Court Justice. Nobody stopped Obama from putting forth a name as was his duty under the Constitution
It absolutely baffles me that anyone would think a dying wish would supersede the U.S. Constitution, but here we are.
Even if Ginsburg had made this “dying wish,” she was not a member of some aristocratic judicial system in which she could, with her last breath, dictate the terms on which her seat was to be filled. That is the arrogance of the ruling elite in Washington DC.
Ginsburg probably knew this, which is why it’s dubious that she even made this request in the first place.
While Ginsburg admitted in 2016 that the Senate under McConnell could not be forced to act when he declined to confirm Merrick Garland (more on that in a minute), she did quite plainly say that “The president is elected for four years not three years, so the power he has in year three continues into year four.”
“Maybe members of the Senate will wake up and appreciate that that’s how it should be,” she said, a statement that has aged rather ironically considering the current circumstances. She left out that in Article I, Section 5 Clause 2, the Senate gets to make its own rules of Proceedings. And they can change those rules anytime they want as former Democrat Majority Leader Harry Reid di in ending the rule on filibusters for judicial appointments so Democrats could stack the DC Court of Appeals for more liberal rulings. At the time Minority Leader Mitch McConnell warned Reid that he might regret that tradition, and here we are! That filibuster rule would come in handy right now for Chuck Schumer.
As for McConnell, he did refuse to confirm Garland in 2016 on the grounds that a Senate controlled by the opposing party to that of the executive could not be compelled to confirm a SCOTUS pick during an election year.
You will hear from all the pundits and politicians on the left that he did so solely because it was an election year, but that is not the case. Even if he did with Garland, so what. It’s called power politics. The Constitution does not prohibit power politics.
This time around, the GOP controls the Senate and the White House.
McConnell was clear about this almost immediately after Ginsburg’s death.
“The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life,” he said in a statement on Friday.
“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise,” McConnell explained. “Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”
“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” he continued.
“Once again, we will keep our promise,” he said. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Elections have consequences.