Donald Trump should nominate a Supreme Court Justice today

20 September 2020

1:13 AM

20 September 2020

1:13 AM

Oh dear, oh dear, oh dear: the Bulwark is fretting that he who shall not be named might, sneaky devil that he is, try to exercise the legitimate powers of his office and nominate someone to replace Ruth Bader Ginsburg, who died on Friday at 87 after a long battle with cancer.

Listen: ‘If Trump and Republicans replace Ginsburg it will destroy the remaining public legitimacy of the Supreme Court. Full stop.’

‘Full stop’ indeed, but not quite in the way intended.

What planet does this missive arrive from? ‘If Republicans choose this route, their ruthlessness would have resulted in not one, but two SCOTUS seats that will be widely regarded as stolen. And worse: stolen by a president who was himself elected despite a decisive loss in the popular vote.’

What is the author talking about? ‘Stolen’? Which positions on the Supreme Court have been ‘stolen’? And whence the girth of that ‘widely regarded’? By writers for the Bulwark and members of the Lincoln Project (‘Being a good president means being a good person’)? Be still my heart.

Savor in particular the concluding words: ‘a president who was himself elected despite a decisive loss in the popular vote’. Memo to the Bulwark: the President of the United States is chosen not by winning a majority of the popular vote but by winning a majority of the votes of the Electoral College. Don’t take my word for it. It says so right here in Article II, Section One of the Constitution. That number is 270. Donald Trump won 304 electoral votes. Three-hundred-and-four is a larger number than 270. Ergo, etc. I am surprised that they don’t learn these things at the Bulwark.

It is a matter of lingering curiosity that the Bulwark, which continues to bill itself as a bastion of ‘responsible’ (I think they even say ‘elevated’) conservatism, should be so concerned that Ginsburg, a conspicuous progressive, might be replaced by a conservative, i.e., non-activist jurist. Wouldn’t anyone who was conservative desire that?

Not the Bulwark. And note how their argument proceeds. First, there is the assurance that ‘the current president’ is — ‘just as a statistical matter’ — more likely to lose than to win’. What can this mean? That the Bulwark has consulted some left-wing polls that show the man in the basement ahead? So what. As I write, Rasmussen has Trump approval rating surging to an all-time high of 53.

Then, there is the imputation of nativism/racism/xenophobia. ‘Trump’s white nationalist base is already demanding that the President fill Ginsburg’s seat immediately.’ Oh, his ‘white nationalist base’. I see. For support, the author quotes…Molly Jong-Fast, that reliable exponent of elevated conservatism.

Third, there is the appeal to high-mindedness, a call to follow the ‘one pathway that leads to comity’. And what is that pathway? Why, to accede to what we are told was Justice Ginsburg’s dying wish: that she not be replaced by this President. Shouldn’t ‘all parties…respect this great American’s last wish’?

Um, no. In the first place that pathway to comity proceeds in only one direction. It’s OK when the Democrats act in a vicious, partisan way — that’s politics — but just let Republicans act according to the interests of their principles: that’s unacceptable, it’s ‘divisive’, it’s putting party above the interest of the people, etc., etc. Never mind that Republicans never act with the sort of unbridled savagery that is the specialité de la maison of the Democrats: just cast your mind back to what the Democrats did to Robert Bork, to Brett Kavanaugh, to say nothing of the way they have treated Donald Trump and everyone his orbit. Where was the ‘comity’ and ‘respect’ in those cases (and they are legion)?

We’re supposed to be concerned that Ginsburg’s death comes only 45 days before the election, only a few months before the next President, be it Donald Trump or Kamala Harris and her new pal, is inaugurated. But so what. In recent memory, three Supreme Court nominees have been put forward and confirmed within 45 days — including Ginsburg herself, who traipsed down the comity pathway in just 42 days in 1993. John Paul Stevens made the journey in just 19 days.

No, the commentator Dan McLaughlin, writing in National Review in August, got it exactly right. ‘Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament.’

‘Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.’

McLaughlin goes on to point out that there have been 29 times in our history that a Supreme Court vacancy opened up in a presidential election year or in a lame-duck session before the next presidential inauguration. In all 29 cases, the President made a nomination. Washington did so three times; John Adams did so, as did Jefferson, Lincoln, Grant, FDR, Eisenhower and even Barack Obama, for those who like their historical precedents recent.

Donald Trump should follow precedent and nominate someone as soon as he can — today if possible. It’s possible that the Bulwark-like Republicans Lisa Murkowski, Susan Collins and Mitt Romney will conspire to scotch the nomination. It’s possible that other senators up for election will get cold feet. Republicans have never been as disciplined as a party as the Democrats. But the effort should be made.

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