We are about to see the worst of humanity as well as the worst of the American political system following the untimely death of one of my personal heroines, Ruth Bader Ginsburg. She was a pioneer for women and a Jewish woman who represented the best of America in every way.
The scenario following her death had been anticipated for many years now. What would happen if the oft-ailing Justice Ginsburg died under a Republican president? Would the Court then shift irretrievably to the right placing Roe v. Wade in jeopardy and altering the face of the country for decades given the relative youth of the Republican appointees to the Court? As long as Justice Ginsburg was alive, the hope for balance struck by the Court’s four liberalish members (Ginsburg, Breyer, Sotomeyor and Kagan) was alive. Chief Justice Roberts seemed unlikely to upend Roe on his own no matter what the other Republican appointees decided. In essence, there was a stalemate. Now it appears, despite claims by Mitch McConnell, Lindsey Graham, Ted Cruz and others four years ago that President Obama could not fill the Scalia seat until a new president was chosen and that a new justice should not be appointed during an election year, now it seems that is all tossed out the window and President Trump can make an appointment and McConnell will ram it through the Senate prior to the new Congress being seated in January. This is the height of hypocrisy if it occurs—and my bet is that it will. At least the presidential appointment already has.
Trump probably had his appointee in mind and can send a name to the Senate this week. And he pledged it would be a woman and it was. Senator Graham can constitute the Judiciary Committee quickly and hold hearings in a week or two. Then Judge Barrett’s name can be forwarded to the Senate and McConnell can hold his vote. This all may come down to whether or not the GOP Senators, especially those up for election this November, can stomach such tactics. It is likely that Susan Collins, and Lisa Murkowski will vote no or will at least defer until after the election should both the White House and the Senate go to the Democrats. That could allow the President of the Senate, Mike Pence, to break the 50-50 tie, if, in a further twist in Arizona, a new senator (Astronaut Mark Kelly) is seated in November meaning if three GOP senators remained naysayers, the nominee would not pass should the vote take place in the post-election lame duck session. If Mr. Biden assumes the presidency in January, then he would get to fill the Ginsburg vacancy just as Mr. Trump voided Obama’s Garland nomination with his nomination of Neil Gorsuch.
The lobbying and political infighting will be vicious as this is the moment for which Donald Trump was elected by many, conservative domination of the Supreme Court, but is this at all fair given what happened to Merrick Garland, President Obama’s pick in 2016? Not at all.
As Mr. McConnell said four years ago, the American people ought to have a say in the next Supreme Court appointment. They can if the Republicans wait to act on that appointment until after the lame duck session after the election in November of 2020. Don’t count on it.
I think Mr. Trump will make a quick nomination and Graham will assemble his committee briskly and pass the nominee on to the floor of the Senate. Given the absence of the filibuster in matters of judicial appointments, there is nothing to stop the GOP from affirming that nominee—except Senators Collins, and Murkowski and—-?
Expect to see the most venal and under handed behavior ever in the next few weeks. Everyone can agree that there is much at stake. The question is whether or not you and I get to make our voices heard through the ballot box or not. As if 2020 couldn’t be bad enough. It just got worse.