Sunday, September 20, 2020
Justice Ruth Bader Ginsburg (1933-2020): R.I.P.; Let the Raw, Bloody Political Battles Begin
Justice Ruth Bader Ginsburg passed away Friday from pancreatic cancer. Even her death is being viewed through harsh partisan prisms. Ruth Bader Ginsburg was to women’s rights the equivalent of Thurgood Marshall to African American rights. Both were prodigious litigators who changed America for the better before appointment to the Supreme Court. They fought in the courts for legal rights respectively for African Americans and women. Both were of their times, but both shaped their times. RBG became the core of the liberal bloc on the Supreme Court, always consistently on the left, being surpassed only by Justice Sonia Sotomayor. RBG was not bound by either the words of the Constitution or the intent of the Founding Fathers. Instead the Constitution to her was a living document to be judicially amended as five justices see fit. Her judicial philosophy was judicial activism contra to some views as a professor. She even recommended the South African Constitution as a model for a new Egyptian Constitution in 2012. Professor Ruth Bader Ginsburg had mixed emotions on Roe v. Wade. She approved the result, but not the opinion itself: “Roe, I believe, would have been a more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statue before the court …. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflicts.” Justice Ginsburg was a political partisan, even unjudicially declaiming Donald Trump in 2016. So much for the veneer of judicial impartiality! RBG was a star and icon for Democrats. She brought unabashed partisanship to the Supreme Court in her opinions. Appointments had already become political slugfests. The makeup of the Court was 5:4 as of Wednesday. It is now 5:3, or occasionally 4-1-3. The vote to approve her nomination was 96-3. It would not be nearly so unanimous in today’s bitter partisan environment. Recent appointments prior to Judge Kavanaugh’s appointment have been closer, but the outcomes were agreed upon by both parties when the appointments were 1:1 political replacements. Sturm and Drang were for show. Judge Kavanaugh’s appointment was the first in a couple of decades to tilt the balance on the Court. Justice Kennedy was the swing vote, who often voted with the liberal majority on critical issues. Pro-life supporters felt Roe v. Wade was at risk. The result was a smear campaign, Borking, that exceeded that even against Justice Thomas. Democrats rely on the judiciary for judicial legislation on social issues voters and legislatures will not approve. They also fight any threat to Roe v. Wade. They eagerly turn to character assassination to destroy nominees. This nomination will set a new standard for the raw exercise of political power. Not even a respectful morning period; the politics have begun. The Constitution Gives the President to nominate federal judges with the advice and consent of the Senate. The Constitution does not bar appointments in election years. The President has the constitutional power to appoint and the Senate to vote on a Supreme Court appointment during an election year. 14 Justices have been confirmed during presidential election years. Elections have consequences. The voters elected President Trump in 2016 and provided the Republicans with Senate majorities in 2018. A major plank of the President and Senate Republicans campaigns was filling judicial vacancies with conservatives. The President and the Senate have the constitutional power to confirm a replacement for Justice Ginsberg. The Democrats are apoplectic, shedding crocodile tears. Senator Majority Leader Harry Reid under President Obama ended the filibuster for lower court judges to stack the lower courts. Senate Minority Leader Charles Schumer as Majority Leader would not hesitate to confirm a progressive to the Supreme Court given the opportunity. The Democrats two years ago had no problem impeaching President Trump during the 2018 election year. It was a raw political act on their part. Massachusetts Senator Ed Markley threatened the Democrats will eliminate the filibuster and stack the Supreme Court if they gain the presidency and control of the Senate. Senator Schumer echoed that threat. A chorus now calls for stacking the Court. That is not a threat. They’ve already reached that decision. The outspoken Brian Fallon, press secretary for the unsuccessful Clinton campaign four years ago, says any Trump appointment to replace RBG would be “fundamentally illegitimate.” He also think Justices Gorsuch and Kavanaugh are illegitimate. Even the Trump Campaign was illegitimate in his eyes because of Russian collusion. Hillary Clinton said a rush to confirm a replacement for Justice Ginsburg would a “monument to hypocrisy.” Speaker Pelosi is leaving open the option to impeach President Trump if he appoints a replacement for Justice Ginsburg. She also remarked “We have a responsibility to meet the needs of the American people.” Yes, the needs of the American people except for salon and saloon owners, bar tenders, wait staff, small business owners, employees et al. Senator Amy Klobuchar was more restrained. She appealed to the moral compass of Republican Senators to not move forward. “Moral compass” in raw partisanship politics? “Moral compass” is a strange concept for a Democratic Party that immorally, unethically tried to destroy Judge Brett Kavanaugh to keep him off the Court. The Senator said the opposite four years ago on the failed nomination of Judge Merrick Garland: “The constitution is clear. The Senate must consider the president’s nominee and then choose whether to vote yes or no. We must do our job, hold hearings and vote.” It's all political rhetorical hypocrisy. Vice President Biden said SCOTUS should not be subject to politics. Democrats are quoting the Justice’s words to her granddaughter. The replacement should be made by the next president. Justice Ginsburg’s wishes are not constitutional constraints. Nor is her comment in 2016 when she said “Nine is a good number.” She opposed increasing the Court’s size. Of course, it’s all politics! The pressure is on “moderate” or endangered Republicans, including Susan Collins (Maine), Martha McSally (Arizona), Lisa Murkowski (Alaska), Mitt Romney (Utah), and Cory Gardner (Colorado). Senator Collins is known for her independence. She has consistently trailed her opponent in the polls. She said today the new president should pick RBG’s replacement. That is either a brilliant political statement. It reinforces her image for independent thinking, much appreciated by Mainers. Or she may be pulling a Senator Kelly Aycock. The young, irrepressible Kelly Aycock was elected to the Senate from Vermont in 2010 as a conservative Republican. Republicans saw the a rising star in Senator Kelly Aycock. She lost reelection in 2016 by 1,017 votes. The theory was solid Trump supporters refused to vote for her. She said after Donald Trump’s sexist statements came out that she could not vote for him. 1,017 votes! Any Republican who votes against confirmation this year risks becoming the next Kelly Aycock. Senator Lisa Murkowski also said she would wait until after the election. She’s probably forgotten her near miss in her 2010 reelection campaign. She lost the Republican primary, but won the general election on write in votes. The result may be different in 2022.