Monday, September 21, 2020

Replacing Ginsburg

 By THE EDITORS | National Review

(tupungato/iStock/Getty Images Plus)

While we did not agree with many of Justice Ruth Bader Ginsburg’s views about the Constitution or the judicial function, we never doubted her industry, dedication, gumption, civility, or patriotism. We send our condolences to all who mourn her passing.

Justice Ginsburg almost certainly had more fans than any other justice in U.S. history, with her great friend Justice Antonin Scalia in second place. The wide acclaim, and wide opprobrium, for these justices is a sign of something that has gone wrong in our political culture, in which the Supreme Court looms entirely too large. Her death has therefore led not just to mourning but to the start of a political convulsion.

Many commentators, mostly Democrats, are saying that the Republicans have an obligation to show restraint: to leave this vacancy to be filled by whoever wins the presidential election rather than moving forward with a nomination and hearings. They say that in 2016, when President Obama nominated Merrick Garland to replace Scalia, Republicans argued that no nomination should proceed right before a presidential election and that Republicans should adhere to that same principle now. They say also that if Republicans fill the seat, Democrats will retaliate next year by expanding the Supreme Court to add more liberals to it.

The argument from 2016 is unavailing. Our own view was that the Republicans’ point about acting in an election year was secondary to the imperative to advance constitutionalism on the Court. But the most careful articulations of the Republican position in 2016 held that when a Supreme Court vacancy arose while the White House and Senate were controlled by opposite parties and a presidential election was coming soon, the vacancy should be filled by the winner of that election. In short, the voters should be asked to break the deadlock between two branches they elected. That condition does not apply today, as Republicans have won a Senate majority in three consecutive elections. (It is tempting, because it would be useful for conservatives, to say that Democrats should be held to what many of them said in 2016: that the Senate had a constitutional obligation to proceed with any nomination the president made. But that argument never had any grounding in the Constitution.)

The notion that Republicans should calm troubled waters by standing down is a little more beguiling. But it should also be rejected. Supreme Court nominations have become incendiary events because the Court has strayed so far from its proper constitutional role. There is no need to be coy: What we have in mind most of all, just like progressive activists, is abortion. In Roe v. Wade, the Court swept away the laws of 50 states and trampled on the most fundamental of human rights, and it did it without any justification in the text, original understanding, logic, structure, or history of the Constitution. Even legal scholars who approve of the policy result have admitted as much. A Court that claims that power for itself can commit many other enormities. And the Democratic Party, very much including its current presidential nominee, maintains a litmus test that any Supreme Court nominee must pledge fealty to that anti-constitutional ruling.

The rift between constitutional law and the Constitution has done great damage to our political culture. It would be perverse to give up a chance to pull them back together because of that damage. And it would be a mistake to allow the risk of future progressive mischief to cause conservatives to refrain from taking that chance.

President Trump, like President Obama in 2016, has the constitutional power to nominate a Supreme Court justice. He should exercise that power to put forward someone with a track record of respect for the law and for its limits on the judiciary. The Senate, as it did in 2016, will then have the power to decide whether to proceed. If the nominee meets threshold conditions of quality and judicial philosophy, we hope it will schedule hearings expeditiously and vote whenever enough time for deliberation has passed.

 THE EDITORS comprise the senior editorial staff of the National Review magazine and website.



When Trump said Justice Ginsburg would be replaced, crazed Democrats shrieked “Burning it all down”

BY JACK CROWE | National Review

NEWS OF SUPREME COURT JUSTICE RUTH BADER GINSBURG’S DEATH on Friday put a match to the tinderbox of American political life, adding yet another layer of significance to an election that partisans on both sides have been casting as existential since Trump took office.

 As soon as the news broke that Ginsburg, who was appointed to the Court in 1993, had succumbed to pancreatic cancer, Twitter activists began shrieking about “burning it all down” — and their analog equivalents showed up outside Majority leader Mitch McConnell’s house in Washington, D.C., presumably in an attempt to intimidate him into delaying the confirmation of Ginsburg’s replacement. (They left disappointed after learning that he wasn’t in Washington.)

 Unfortunately for McConnell, wherever he was, the protesters had comrades in arms in Kentucky, roughly 100 of them, who gathered outside the majority leader’s house on Saturday.

 The protesters held signs reading “Ruth Sent Us’ and chanted, “Hey, hey, ho, ho, Mitch McConnell has got to go,” “vote him out” and “ditch Mitch.”

McConnell announced Friday night that he would move forward with confirming President Trump’s nominee without delay on the grounds that his party had unified control of the White House and the Senate, unlike in 2016, when he blocked President Obama’s nominee nine months ahead of the presidential election.

Some protesters said they had come to scream at McConnell’s house because they hadn’t received a call back from his office, and one woman said she was motivated by “disgust.”

“I’m disgusted that Senator McConnell would treat this opportunity in a complete different manner than he treated the opportunity when there was a vacancy when Obama was nine or 10 months away from the election,” Laura Johnsrude told the Courier Journal. “I’m not surprised, but I am disgusted. I think that’s appalling.”

 The ugly practice of surrounding the homes of public figures has become commonplace in the Trump era. Most recently, the banana republic tactic was applied to Director of Homeland Security Chad Wolf. In July, a mob surrounded his Arlington, Va. home and used megaphones to make clear that, by enacting the Trump administration’s policies, Wolf had forfeited the right to “live here quietly.”

The mob tactics also threaten public figures when they’re out in Washington or in their home districts and their locations are known to the public.

Senator Rand Paul of Kentucky and Representative Brian Mast of Florida were surrounded by a mob outside of the Republican National Convention in Washington, D.C. last month. Paul and his wife were forced to wade through a sea of men and women screaming in their faces in order to reach their hotel.

Paul said afterwards that, if not for the police officers who formed a barricade around him and his wife, they would have been seriously injured and maybe even killed. And all of this took place before the people who surrounded Paul and his wife thought that the composition of the Supreme Court for a generation hung in the balance.

When lawmakers and members of an administration can’t show their faces in public, something is deeply wrong. If the last few months are any indication, things will get much worse before they get better.