Posted on 09/27/2020 9:50:59 AM PDT by gattaca
President Trump has never been known to back away from a political fight, and choosing to nominate a replacement for Justice Ruth Bader Ginsburg immediately was in character. Now he probably ends his term with the most consequential fight yet. The result could be an enduring 6-3 conservative majority on the Supreme Court or an embarrassing political defeat just as voters head to the polls to decide if he merits a second term. It could also trigger a successful Democratic court-packing effort, ushering in a new era of liberal dominance as early as next year.
That last possibility is a sign both of the escalating "legitimacy war" between the two major parties and of the stakes of the final battle of Trump's term.
His floor general is Senate Majority Leader Mitch McConnell. The Kentucky Republican is a canny legislative tactician who helped the president beat impeachment and prevail in two previous Supreme Court confirmation battles. Together, they have reshaped the federal judiciary along more conservative lines, nominating and confirming more than 200 judges. McConnell vowed Trump’s nominee would get a Senate vote the night Ginsburg died, before the president himself was willing to go beyond expressing condolences.
Arrayed against them will be the full force of the Democratic Party and its media allies, which will mobilize against Ginsburg’s seat being moved over to the conservative bloc, and all the liberal interest groups they can enlist. “Donald Trump — who lost the popular vote by millions — must not be allowed to further demolish the American judiciary,” the left-wing group MoveOn.org said in an alert to its supporters. “So many political and systemic norms have been destroyed by this administration, and we cannot let Trump continue to destroy our democracy.”
“An actually open Supreme Court seat in the final 45 days of a presidential election, with the court balance at stake? That mobilizes voters in both parties and all ideological lanes,” said Nicholas Everhart, a Republican strategist. But, he told the Washington Examiner, the “more significant question is who and how it helps candidates in tight U.S. Senate races across the country. The national playbook is not the playbook some folks want to be handed right now when it starts getting to some of these incredibly close U.S. Senate contests."
Congressional Democrats are taking stock of their options. They have floated everything from boycotting the confirmation hearings to launching another impeachment inquiry to derail Trump’s new nominee by eating up the clock and forcing the Senate to go through the procedural motions. “We have arrows in our quiver that I’m not about to discuss right now,” House Speaker Nancy Pelosi, whose chamber has no formal role in the process, said on ABC’s This Week after Ginsburg’s death. “Nancy Pelosi, Chuck Schumer, and Alexandria Ocasio-Cortez have officially shown their blatant disregard for the United States Constitution,” White House press secretary Kayleigh McEnany told reporters at a briefing. “Apparently, it is now a high crime and misdemeanor worthy of impeachment for a lawfully elected president of the United States to exercise his constitutional duty.”
“Duty” is how the White House often frames Trump’s constitutional prerogative to fill a Supreme Court vacancy. “President Trump believes that he has an obligation under the Constitution ... to put forward a nominee to the Supreme Court,” Vice President Mike Pence told CBS News. “There’s been 29 times that there's been vacancies, since George Washington through Barack Obama. In all 29 cases, the president has made a nomination to the Supreme Court during an election year, and President Trump believes that it’s his responsibility and his duty to do that again.”
The last justice nominated in an election year is one of the reasons Democrats are so incensed. When Justice Antonin Scalia died during the last presidential race, Obama nominated Judge Merrick Garland to succeed him. Senate Republicans, led by McConnell, blocked him throughout 2016, refusing even to schedule confirmation hearings. After Trump unexpectedly won the election and was sworn in, he nominated Neil Gorsuch, who was confirmed by the GOP-controlled Senate. Many Democrats say, and some ardently believe, that Gorsuch’s seat was stolen from Garland — and, by extension, them — and that Trump is about to purloin another, this time on the eve of an election they passionately hope and believe he is going to lose.
Accusations of hypocrisy over the 2016 row are everywhere. And it's true that many Republicans did make arguments, which they are now abandoning, about not filling vacancies in the middle of an election year. “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election,” said Sen. Lindsey Graham, the South Carolina Republican who chairs the Senate Judiciary Committee. “I don’t think we should be moving on a nominee in the last year of this president’s term. I would say that if it was a Republican president,” said Sen. Marco Rubio, a Florida Republican.
But McConnell did not say that. He always noted that his decision to block Garland rested on the fact that the presidency and Senate were held by opposing parties. Since the White House and Senate are currently controlled by the same party, that rule does not apply to Trump’s nominee. Historically, justices have been nominated 29 times in an election year. Of these, 19 have occurred when the presidency and Senate are controlled by the same party, and 17 have been confirmed. Of the 10 justices nominated when the president and Senate are partisan opponents, only two have been confirmed.
These historical facts do not console or persuade Democrats. “Uphold your constitutional duty, your conscience,” former Vice President Joe Biden, the 2020 Democratic presidential nominee, pleaded in Pennsylvania as he urged the Senate to give Trump’s nominee the Garland treatment. “Let the people speak. Cool the flames that have engulfed our country.” Biden called the Trump-McConnell move to replace Ginsburg a “constitutional crisis.” Warning we were standing at the precipice of an “abyss,” he insisted: “If I win this election, President Trump’s nominee should be withdrawn, and as the new president, I should be the one to nominate Justice Ginsburg’s successor.”
Even some prominent conservative voices urged Trump and the Republicans to deescalate the judicial confirmation wars. David French, writing in Time magazine, suggested a compromise in the event Trump loses the election. “Biden should make a deal with the lame-duck Senate,” the noted Never Trumper wrote. “Keep the seat open, and he’ll pledge not to sign any legislation packing the Supreme Court while he’s in office.”
But just as Democrats were radicalized by GOP inaction on Garland, so Republicans were similarly outraged by the Democrats' treatment of Justice Brett Kavanaugh, who, they say, was falsely accused of rape and treated with disrespect throughout the whole process. This enticed rank-and-file conservative voters to head to the polls in red states and swim against the midterm election “blue wave,” and enlarge the Republicans’ Senate majority.
Republican senators themselves felt differently after the Kavanaugh circus, too. “You don’t have to look further than the chairman of the Senate Judiciary Committee,” said Carrie Severino, president of the conservative Judicial Crisis Network, referring to Graham. “Here's someone who tried for years to reach out to people on the Left. Voted for all these liberal nominees. Not only was there no reciprocation, but then this happened.”
“After the treatment of Justice Kavanaugh, I now have a different view of the judicial-confirmation process,” Graham wrote in a letter to committee Democrats explaining his about-face on confirming election-year high court nominees. “Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear that there already is one set of rules for a Republican president and one set of rules for a Democrat president.” Graham was among a handful of Republican senators to vote to confirm Sotomayor and Kagan, both nominees of President Barack Obama.
Severino, whose group has already pledged $2 million to an advertising campaign to fight for Trump’s nominee, noted that there was a period when Senate Republicans tried to deescalate tensions after the Senate’s rejection of Bork and the near-defeat of Thomas in hearings that were lurid and that the nominee evocatively described as a “high-tech lynching.” Ginsburg, for example, was confirmed in 42 days with just three Republicans voting against her, despite her well-established record of liberal judicial philosophy and affiliations. Stephen Breyer, President Bill Clinton’s next pick, was confirmed with only nine Republicans voting no.
Despite this, under George W. Bush, Senate Democrats broke with precedent and mounted filibusters of appellate court nominees. Among those blocked or delayed were high-profile conservatives who were members of racial minorities, such as Miguel Estrada and Janice Rogers Brown. Estrada’s wife miscarried during the nomination fight and later died of an accidental overdose after mixing alcohol and sleeping pills. Yale law professor Bruce Ackerman argued in the American Prospect that Democrats should not confirm any Bush nominee to the Supreme Court. “This time the president will nominate a right-wing extremist who happens to have a Hispanic surname rather than a black face,” he warned. Ackerman said this was because of the illegitimacy of the Supreme Court decision Bush v. Gore, which ended the 2000 election in Bush's favor. “If such a president is allowed to fill the court, he will be acting as an agent of the narrow right-wing majority that secured his victory in the first place,” he wrote.
Ackerman conceded, “Bush can fill these positions if he wins the 2004 election fair and square.” After Bush was reelected, winning not only the Electoral College but also the popular vote, half the Democrats in the Senate nevertheless voted against John Roberts, who was evidently qualified for the job. Only four Democrats voted to confirm Samuel Alito. The most liberal and partisan of them, including Obama, Biden, and Hillary Clinton, unsuccessfully attempted to filibuster his nomination.
“They're willing to do whatever it takes. Nothing is off the table,” said Severino. “It is absolutely brass knuckles.” After Republicans responded in kind, filibustering 20 of Obama’s lower court nominees and delaying the confirmation of others, Senate Majority Leader Harry Reid invoked the "nuclear option" in 2013 to end judicial filibusters except for the Supreme Court. In a floor speech at the time, McConnell, who was then the minority leader, warned, “You’ll regret this, and you may regret this a lot sooner than you think." Four years later, he nuked the filibuster for Supreme Court nominees to secure Gorsuch’s confirmation.
That is the environment in which Trump’s nominee will face the Senate, except it will be even more hypercharged. The president is facing a tough reelection race, trailing Biden by 7.1 points in the RealClearPolitics polling average. “I've been going back and forth on this question, and I've come to the conclusion that the vacancy helps Trump,” said Jim Dornan, a veteran Republican strategist.
Trump needs to shore up his support among white evangelicals, of whom he won 81% four years ago. He needs to win back some seniors who have gravitated toward Biden during the pandemic. Trump would like to carve into Biden’s Catholic support — the Democratic nominee attends mass regularly, but charges of anti-Catholic bigotry could loom large in this confirmation — and close the gap in the upper Midwest. A Supreme Court fight, the president’s advisers hope, could help in all these areas.
“For more than half a century, liberals have continued to push their social agenda through the Supreme Court, undermining the Constitution, proper role of government, and separation of powers,” said Jenna Ellis, a senior legal adviser to the Trump campaign and senior fellow at Liberty University’s Falkirk Center. “President Trump is uniting all Americans who care about saving our system of government and our great American heritage that recognizes our rights come from God our creator, not our government, and the sole purpose of government is to preserve and protect those rights by providing liberty and justice for all.”
Ginsburg’s legacy is a wild card, however. Long a hero in liberal legal circles, “Notorious RBG,” as she was affectionately nicknamed, had become a pop culture icon. She was the subject of the movie On the Basis of Sex, starring Felicity Jones as the justice, which tracked her meteoric rise at a time when women were largely excluded from her chosen profession, and a documentary entitled RBG that same year. As if triumphing over sexism was not enough, many people were inspired by her perseverance through ill health since 1999, particularly her long affliction with pancreatic cancer.
That Ginsburg was able to work through cancer treatments and repeated hospitalizations even at age 87 added to the aura surrounding her. Many voters cannot name a Supreme Court justice, but RBG developed an appeal to college-educated suburban women, who are often repelled by Trump but whom the president needs if he is to be reelected. It is not uncommon for voters in that demographic to have changed their Facebook profile pictures to images of Ginsburg. Many of them have heard the dying request she dictated to her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.”
How will these women respond to Trump moving rapidly to replace her, even if it is with another inspiring woman? He is already facing a sizable gender gap. Democratic operatives are hopeful that Ginsburg will help get their voters to care as much about the Supreme Court as many Republicans do.
There is also the question of whether Republican voters will flock to the polls to reward Trump for putting another conservative on the Supreme Court or whether they will be more motivated if the nomination remains in limbo. Conservatives have been let down by past Republican appointees to the court, including such liberals as Earl Warren, Roe v. Wade-author Harry Blackmun, John Paul Stevens, and David Souter. Trump needs his nominee to handle hostile questions from prying senators deftly and with grace, but at the same time without appearing unreliable to voters on the Right. A nominee must try to hold on to the votes of both Sen. Lisa Murkowski, the Alaska Republican who has moved left in recent years, and Sen. Josh Hawley, the Missouri Republican who has said he will withhold his vote from someone who will not explicitly say Roe was wrongly decided.
Many Republican senators are in the same boat as Trump, facing difficult reelection contests. Sen. Susan Collins, a centrist of Maine, is trailing her Democratic challenger, who has made an issue out of the incumbent’s pivotal vote for Kavanaugh. This time around, Collins is opposed to voting on a Trump nominee in an election year. Sens. Cory Gardner of Colorado, Thom Tillis of North Carolina, Martha McSally of Arizona, and perhaps Joni Ernst of Iowa are likely to back a Trump nominee, but none are sure bets for reelection. Even Graham has a strong Democratic challenger this year.
The Senate is very much in play, which is why some Republicans fear that even if they win this Supreme Court nomination battle, they could lose the war. While Biden is equivocal, some Democrats would like to retaliate against conservative confirmation successes with legislating to expand the court, and then packing it with left-wing judges. They already claim that as many as three seats were either stolen or occupied by justices who have gotten away with alleged sexual misconduct. If the legislative filibuster is ended, Biden’s veto could be the only obstacle, and it is unlikely, let alone a sure bet.
“They've been threatening to pack the court long before this nomination,” said Severino. “This is not a new threat. They've been looking for an excuse. They just haven't had the opportunity.” Even the threat of court-packing could influence future Supreme Court decisions, inching Roberts, an institutionalist who has occasionally voted with an eye toward protecting the court’s nonpartisan image, closer to the liberal bloc on especially contentious 5-4 rulings. “Intimidation of Chief Justice Roberts is part of the strategy,” Severino said.
With all these uncertainties and pitfalls, Trump has an opportunity. He can achieve something that eluded even Ronald Reagan. He can leave office with a solidly conservative Supreme Court as part of his legacy. Thus the high-stakes fight begins.
Wishing Trump and Barrett much success, and the dems much failure.
>>>He can leave office with a solidly conservative Supreme Court as part of his legacy.<<<
I was reminded not long ago that counting John Roberts as a “solid” conservative is pushing the envelope a bit.
DAMMIT! I'm so tired of this cr@p!
There is NO SUCH THING as a "Popular vote" in a Presidential election! NO SUCH THING!!
It is a totally fictitious construct of the Leftists and Media who can't read or understand the Constitution. In fact they couldn't understand it even if somebody read it to them!
It’s time to End this curse of Abortion on our Nation.
5-4, Roberts is unreliable.
David French, writing in Time magazine, suggested a compromise in the event Trump loses the election.
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In true Bush League Republican fashion preemptively surrendering.
Too much handwringing even with good historical context in this article.
Divine Providence has intervened. Onwards to the battle and victory!
If you’re on the globalist payroll, it’s what you do.
Forget French, Frumpy, Goldberg and the whole lot of Never Trumpers.
They are not paid to win with us but work against us.
They are paid to get us to vote against our interests.
They were wildly successful for decades getting us to elect endless amnesty candidates.
Without the USSC leaning Left, the Democrat/Communist/Left Party's tenuous grip on power and the future of our constitutional Republic is at serious risk.
As omnipotent power is the very reason for their existence, the Democrat/Communist/Left Party will continue to do whatever is necessary to stop Trump. No holds barred including even if this mortal enemy of America destroys itself in the process. Buckle up, Patriots.
No. It won’t b 6 to 3. It will, at best, be 5-4. Roberts has surrendered to physical threats, his induced fall, and to extortion probably because his name appears on emails connected with Epstein’s island.
Lets carry on with, “WINNING!”
Your right and you could damn well expect their minds would change in an instant if the results were in the opposite direction!!!
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