Making Sense of the Issue of the Day - RBG

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 replacement.

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 [1] [2]. 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.

TheRedneck

[1]: Democrats are threatening to expand the Supreme Court. Good. (WaPo)
[2]: Dems threaten to pack Supreme Court if Trump gets nominee confirmed (Fox)

a reply to: TheRedneck
I am obviously for a stacked constitutional scotus. We get that, maybe we can scale back the NFA 1934. Might even get fathers rights into abortion cases. Assuming Roe v Wade does not get reinterperted first.

The media and the activist system has been too misandrist for too long. The men, we need some parental rigjts back man.

I thought The President could also appoint a temp SC Judge. If so, that is likely how he will go.

What is important to note is that the Dems have already told us they will contest everything in court.

A solid SC is very critical in knocking false claims out.

Interesting times

P

In thinking about how this administration has been treated in it's entire tenure, I have to say, being nice here, isn't an option. it's not like Trump would upset people that weren't already upset. And his base will only cheer this move. Id say he has nothing to loose and everything to gain.

But having said that, I don't see how it's possible for this to happen before January 20, unless some magic happens.

And if Trump wins again, none of this will matter at all, other than the tears.

originally posted by: pheonix358
I thought The President could also appoint a temp SC Judge. If so, that is likely how he will go.

There is no such thing, you're either a Justice for life or not.

originally posted by: network dude
But having said that, I don't see how it's possible for this to happen before January 20, unless some magic happens.

That's assuming the election doesn't flip the Senate, if it does he has until the 3rd.

Trump should nominate, the Senate should vote.
There can be no pandering to left wing talking points.

The reality is that the democrats would have done EXACTLY the same in a Garland situation and EXACTLY the same in this current situation - i.e. blocked one vote and went ahead with the other.

Does ANYONE seriously believe that Gorsuch or Kavanaugh would have got hearings with a Dem controlled Senate???

Having said that, America is too far gone now. The only out for Constitutionalists is a civil war (not that it will happen, of course)
The election is locked with a Biden win, with Democrat control of the House and Senate - and when that happens the far left will just stack the court with 4 activists in order to ensure Biden (Harris) can push forward whatever they want without any checks or balances.

originally posted by: AugustusMasonicus

originally posted by: network dude
But having said that, I don't see how it's possible for this to happen before January 20, unless some magic happens.

That's assuming the election doesn't flip the Senate, if it does he has until the 3rd.

When does the new Senate (post election) actually start? Is it straight away?

a reply to: UKTruth

The morning of the 3rd.

a reply to: TheRedneck
What is legal?
Too bad dems.

Regret that stupid impeachment now?

originally posted by: AugustusMasonicus

originally posted by: pheonix358
I thought The President could also appoint a temp SC Judge. If so, that is likely how he will go.

There is no such thing, you're either a Justice for life or not.

Link

The shortest serving Chief Justice was John Rutledge who was appointed under a temporary commission because the Senate was in recess. He served for 5 months and 14 days before the Senate reconvened and rejected his nomination.

P

Whether or not Trump makes a selection is off the table. He will, and he should. Note that even Obama did in Merrick Garland. That half of the question shouldn't even be debated.

The question now is over whether or not the Senate takes the matter up prior to the election or not.

If Trump appoints Amy Coney Barrett or Lagoa (I think it's her; there was one other with Coney Barrett), they were both recently vetted and appointed by the Senate to their current court seats. So any vetting or background checks out to be mere formalities and could be expedited. This whole process could be a wham, bam, thank you, ma'am, type deal.

At most, it might be prudent to check the vote until the election and take the vote then for a couple reasons.

1. It might take some of the thunder out of Democrats election contesting posturing. If they raise a stink over a clear EC win, then you vote in a clear consitutionalist judge and put the possible 4-4 SCOTUS split off the table. They know you have that weapon in your arsenal going forward and won't hesitate to use it.

2. Even in the event of a loss, you put the new justice on the Court. The Democrats have been threatening to pack the court, nuke the filibuster, and change the EC even before this came up. These threats were merely electoral promises before. Why should they suddenly seem so much more threatening now? At least make their job a tiny bit harder so the travesty unfolding is that much easier to see. If they're going to do it, make them lick the plate.

But regardless, the idea of Trump making his appointment should not in any way be controversial.

a reply to: pheonix358

He was not confirmed by the Senate, it isn't temporary in the sense that it had a rules-mandated shorter term, it was temporary in so much that he didn't get approved. There have been plenty of other recess appointments for Justices, they were subsequently approved.

Mail in ballots are extremely excessive by one party. Red flag. Not enough resources to verify ballots and nobody is concerned about it. They are content with having election "weeks" instead of an election "night". Second red flag.

There are going to be audits meaning not all the ballots will be checked. Just a certain percentage. Whenever these audits are done they always find irregularities and fraud. This time though they will find excessive problems because there are more mail ins. They already are finding problems with barely trying. Third red flag.

We don't have to speculate what is going to happen with several red flags. The election will be massive disaster. The SCOTUS is going to have to call it. We need a full SC. If we don't have a full court I don't even want to think about the next scenario. Get a judge. Permanent, temp. Doesn't matter. Just get the damn judge.

a reply to: pheonix358

The President can appoint a Justice if the Senate recesses before confirmation. That appointment is only temporary though. The Senate in the next session can either refuse the nomination, removing that Justice immediately, or confirm, making the appointment permanent. If the Senate does neither, the recess appointment ends at the end of the next Senate session.

I actually had to look that up last night...

TheRedneck

a reply to: ketsuko

The Democrats have been threatening to pack the court, nuke the filibuster, and change the EC even before this came up. These threats were merely electoral promises before. Why should they suddenly seem so much more threatening now?

I tend to agree with this myself. We were hearing about packing the courts as far back as the Kavanaugh confirmation hearings. It's an empty threat IMO that this appointment would cause such. If the Senate flips and Biden wins, we will probably see up to four additional Justices whether the Ginsberg vacancy is filled or not.

TheRedneck

originally posted by: TheRedneck

Quite simple to explain, the Senate refused to devote time to a fruitless cause. The funniest thing about this was it was really a moot point to the dems at the time, but they wanted to try and make a stink anyways. EVERYONE was convinced Hillary would win and it really didn't matter, until it did.

The Republican Senate for once had a backbone and let the people decide in the election. This does not equate to the current situation, Trump is not a lame duck and despite what the media wants to tell us, Trump IMO will win in a landslide. Regardless, the supposition that elections have consequences holds true. Many republicans voted for Trump SOLELY based on his promise to fill judicial seats including the SCOTUS, for many this was the ONLY reason they voted for Trump in 2016. He upheld that promise along with dozens of other promises kept. In this light, what possible reason would Trump have for NOT nominating a SCOTUS? There isn't one.

If Dems were in control they would not wait for the election.

Republican's should not wait either.

It's that simple.

a reply to: pheonix358

Eisenhower did it but it's real complicated afterwards 😎

Nothing unconstitutional was done in 2016.

Now in 2020 however, some Democrat leaders are strongly suggesting some unconstitutional procedures !! 😎