Well, here I go again, trying to resurrect the ATS of olden days with an actual debate about a major question that seems to be on a lot of minds.
So please, can we keep this one civil? No angry tirades about Hitler or dictators or evil people, OK? This is not in the Mud Pit for a reason.
Supreme Court Justice Ruth Bader Ginsberg has died less than two months before an election that seems to be shaping up in the spirit of 2020...
meaning if something can go wrong, it likely will. After all, we have been through so much bad this year, everything from murder hornets to record
wildfires to hurricane floods to pandemics to rioters burning down sections of the cities. Now there is a vacancy in the US Supreme Court, leaving
open the possibility that any case sent before it will result in a 4-4 tie.
In 2016, when Justice Anthony Scalia passed away, President Obama nominated Judge Merrick Garland to fill the vacancy. The Republican Senate, under
the control of Senator Mitch McConnell, refused to hold hearings on the appointment until after the election. This was justified by quoting a little
known (at least, little known to me at the time) rule that in the last year of a lame duck President (Obama was finishing up his second term and was
ineligible for a third term), a Senate with a majority of the opposing party to the President would wait until the election to consider a
Now, at the time, while I was relieved Merrick Garland would not be a Supreme Court Justice, that seemed a flimsy excuse to me. The Constitution is
clear about court appointments: the President nominates a replacement, and the Senate then can either consent or not. Technically, this is what
happened. Obama nominated Garland, and the Senate refused to consent. The problem was that they refused to even consider Garland, and I made the
statement at the time (maybe on here; I don't really remember) that this decision was going to bite someone in the butt just as hard as Harry Reid's
decision to stop the filibuster on nominees.
And, so it did.
Now we have a question as to whether or not the Senate should go forward with hearings. It does seem hypocritical, even though Trump is not a lame
duck and the Senate is of the same majority as the President. I see no reason why Trump should not nominate a successor to Ginsberg; after all, Obama
nominated a successor to Scalia. There would seem to be no legitimate issue there; Trump is well within his Constitutional authority to do so, and has
said he will do so. The issue, it seems to me, lies with the Senate.
So, what should the Senate do? How will holding a hearing affect the results of the election? Will the electorate be turned off by the apparent
hypocrisy, or will a 3rd Constitutionalist Justice in Trump's first term actually energize the electorate for the Republicans? We know that a large
part of Trump's appeal in 2016 was his promise to nominate Constitutionalist Justices.
There are other considerations. Right now, the Supreme Court is leaning Constitutionalist by a count of 4-1-3 (I count Chief Justice Roberts as an
undecided, since he tends to shift between Constitutionalist and Activist positions). A Constitutionalist Justice would shift that balance to 5-1-3
and solidify the Supreme Court as Constitutionalist. But if doing so will cause a shift of the Senate Majority and Presidency to Democratic control,
that may be a moot point. Democratic leadership has already stated that they intend to expand the Supreme Court, leaving multiple vacancies for the
next President to fill, and that is their prerogative
]. The Constitution establishes the Supreme Court, but is mute on how
many Justices it contains. That is left up to Congress (subject of course to Presidential veto).
On the other hand, the election could come down to a Supreme Court decision. In that case, we could possibly have a true Constitutional crisis should
the Supreme Court be unable to render a decision due to a tie. In that case, if there is no President or Vice President after Inauguration Day, does
the Speaker of the House fill that role as next in line? Remember that the Speaker of the House come January 20 may or may not be Nancy Pelosi. She is
Speaker now, but if the balance of power shifts in the House that would change as well. Likely it would be McCarthy (Republican leader in the House)
who would take control in that case.
Then there is the fact that whatever the Senate does may not change a single vote. This is a very divisive election; most people, I believe, have
already made up their minds and it will take an awful lot to change them. The economy is still struggling back to life while the pandemic that caused
it to stall is still in the news. Those issues would seem to affect people's lives more directly than a Supreme Court Justice confirmation, and the
economy was also a major reason for Trump support in 2016.
Talk about 4D chess! I think we are staring at it for real.
So I'd be interested in hearing what our members think about this... what do you think the right decision should be?
And please remember to be nice.
: Democrats are threatening to expand
the Supreme Court. Good.
: Dems threaten to pack Supreme Court if Trump gets nominee confirmed