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.
https://www.nationalreview.com/2020/09/replacing-ginsburg/
RELATED
ARTICLE
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.
