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U.S. Supreme Court Justice Ruth Bader Ginsburg died this week. Her death was tragic in that she was admired by many, but a blessing because of the suffering she experienced over the past few years.
However, her death leaves a hole in a nine-person court that is almost always divided five to four on every case. So, you know a Supreme Court vacancy would be a political hot button in an already polarized nation.
Ginsburg had not yet assumed room temperature before politicians fully embraced hypocrisy all for political purposes. This is why people absolutely hate politics even more than politicians.
Ginsburg vs. Scalia
Let’s compare the circumstances of Ginsburg’s death to those of Antonin Scalia in 2016.
Ginsburg was a liberal justice, while Scalia was conservative.
Ginsburg was female and Scalia was male.
Both were white.
Ginsburg was Jewish and Scalia a Christian.
Ginsburg was appointed by a liberal (Bill Clinton) while Scalia was appointed by a conservative (Ronald Reagan).
The U.S. Senate approved Ginsburg’s appointment Aug. 3, 1993, on a vote of 96-3 in a chamber controlled by Democrats, while the Senate approved Scalia Sept. 7, 1986, on a vote of 98-0 in a chamber controlled by Republicans.
Both died during important presidential election years, and this is where things take an ugly turn.
Scalia died Feb. 13, 2016 – One week shy of nine months before votes were cast. Ginsburg died on Sept. 18 – Three days shy of seven weeks before election day.
Playing politics with the court
In 2016, three weeks after Scalia died, President Obama appointed Merrick Garland to the court. However, the Republican-controlled Senate indicated it could not, in good conscience, allow the president make such an important appointment in an election year.
After all, voters would select a new president and could change control of the Senate that November. It’s best, they said, to wait for the new administration to make the appointment to better reflect the will of voters.
Democrats justifiably cried foul.
The U.S. Constitution directs the current president to appoint a judge to a vacant position, and that the current Senate approve that appointment.
There are no special provisions for election years. That means the current president can appoint someone to the Supreme Court up to noon on Jan. 20, when the next president is sworn in.
Democrats had every right to object to the crass political games being played with the vacancy created by Scalia’s death. They justifiably demanded that hearings be held and a vote be taken before the election. Any delay was blatantly unconstitutional, they cried.
Fast forward to 2020.
This time, Ginsburg’s body was still warm when Republicans promised that hearings would be conducted and a new justice sworn in before the presidential election 46 days later.
However, Republicans no longer cared about the possibility the president and control of the Senate could soon change. Its leaders claimed it was way too important – now – to proceed quickly to fill the vacancy.
In fact, they claimed failing to do so before Nov. 3 would could create a “constitutional crisis” with the strong possibility the court could be forced to rule on issues pertaining to the upcoming presidential election.
That’s a strong point. However, in 2016, having a 4-4 court for nine months going into an election was, somehow, not a crisis, even though that race was equality partisan.
In 2020, having a 4-4 court for seven weeks going into an election was something that had to be avoided at all costs.
As a result, Democrats are again outraged that the Senate is following their demands from four years earlier and exercising their constitutional powers.
It’s crass political hypocrisy in its purest form from both sides.
What’s the fairest answer?
Seeing that the Senate wants to play political games with Supreme Court appointments, I think it’s only fair that the same rules be applied to 2020 that were put in place by the same leaders who controlled the chamber in 2016.
As if we needed another reason to polarize the nation and this election, it still makes sense that we let the voters decide who should make that appointment.
Then, regardless of who is president and who is appointed to the court, the Senate should vote its “advise and consent” powers with a nearly unanimous outcome.
After all, elections do have consequences – even though it may be 2024, God forbid – before we have the results of this one straightened out.
Then, after the Supreme Court appointment is completed, states should take steps to trim the Senate’s power with a constitutional amendment:
- Dictating that the president must make an appointment within 14 days of the vacancy, or the Senate minority leader fills the slot.
- Directing the Senate to confirm the appointment within 30 days of the nomination – on a simple majority vote – or it is automatically withdrawn.
- Delay the process by 60 days if a justice dies or resigns within 30 days of any federal election.
That should eliminate all future attempts to needlessly politicize the nomination process.
Ginsberg could have prevented the controversy
May I be so bold to note that this controversy could have been avoided by Justice Ginsberg herself?
She served as an associate Supreme Court justice for more than 27 years. She was first diagnosed with cancer in 1999 – her first of five bouts.
Had Ginsburg truly cared about her legacy and maintaining a liberal influence on the court, she could have very easily resigned her position in late 2015 when Obama was in his second term and the Senate was firmly in Democrat control with 55 seats.
There is no question that she would have been replaced with someone who, at best, shared her legal jurisprudence, or taken the court even further left.
Yet, her own desire for power kept her in that chair far longer than she needed to be – and the nation is dealing with her selfish choice today.
“Power tends to corrupt, and absolute power corrupts absolutely.” – Lord Acton in 1887