Posted on 09/26/2020 3:02:42 PM PDT by fwdude
Leftist/Democrats currently are in an absolute panic over the death, and very probable replacement by a Republican president, of US Supreme Court Justice Ruth Bader Ginsberg. They are now promoting the unsubstantiated and wholly strange ideology that a justice - no, just THIS justice - should be replaced:
- with a woman
- with a person of similar judicial philosophy
- by a Democratic President, purportedly the next president
Where did ANY of these bizarre demands have their genesis?
As far as the last demand, it has been emphasized in several rational recent public discussions how that the appointment of a Supreme Court justice in the last year of a president’s term has been the overwhelming RULE, not the exception. There is nothing untoward about the president fulfilling his constitutional duty, no matter where it occurs in his administration. This has even occurred as recently as the Obama administration, when he nominated a replacement justice well less than a year from the end of his term.
As far as the replacement justice being a cookie-cutter judicial mind of the predecessor, I’d like to ask how and why this is now some kind of hard-and-fast rule. A simple question that drops a nuclear bomb on that insistence is simply: Whom did Justice Ginsburg replace? What was the judicial philosophy of the previous Justice? What was the sex?
Ruth Bader Ginsberg was nominated in 1993 by President Bill Clinton to replace retiring Supreme Court Justice Byron White, a long-serving justice nominated by President John F. Kennedy in 1962. In case it isn’t obvious, Byron White is a man, a white man to be exact. A former highly recognized football player, he played pro football for the Detroit Lions until his career was cut short with the advent of World War II, when he entered the Navy to serve. After the war, he opted to use the money he earned in pro football to attend law school, where he excelled as a law student at Yale, graduating magna cum laude and first in his class. A jock with a brain is virtually a Renaissance man.
White was decidedly conservative in his judicial philosophy. Along with William Rehnquist, White was one of the only two dissenters in the infamous Roe v. Wade case, characterizing the majority opinion as “an exercise in raw judicial power, and “ interposing a constitutional barrier to state efforts to protect human life.” While being a champion of the judicial philosophy of stare decisis White nevertheless never stopped opposing abortion and voted several times in cases to limit abortion.
White also wrote the majority opinion in Bowers v. Hardwick (1986), which upheld Georgia's anti-sodomy law against a substantive due process attack.
The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.... There should be, therefore, great resistance to ... redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.
Bowers was overruled over 15 years later by the pernicious Lawrence v. Texas, a decision joined by Justice Ginsburg. So much for stare decisis.
On many other social and personal freedom issues, White took a middle approach, but never lost sight of the ultimate consideration of personal freedom. He voted to strike down state contraception bans in Griswold v. Connecticut, though he refused to join in the majority opinion of “right of privacy” foundations for the decision. White supported the death penalty as long as the penalty was applied proportional to the crime.
It’s not hard to observe that Justice White was hardly of the same legal mind as Ginsburg. However, Ginsburg sailed through judicial confirmation hearings with a final vote of 96 to 3 a modest month-and-a half after nomination.
So, a Jew for a Christian (Episcopalian.) A woman for a man. A rabid abortion advocate for an abortion opponent. An ivory-tower academic elite for a Bronze Star-awarded war hero. A homosexual-“rights” Nazi for a homosexual acts opponent. A stare decisis hater for a stare decisis respecter.
It doesn’t get any starker than this. I’d say it’s time, in the interest of “equal time,” to switch back to a true conservative, which we largely see in Amy Coney Barrett.
Whizzer White was no originalist, but he was a fairly traditionalist justice who was more acceptable to conservatives than some of the Republican appointees who served with him.
Well written, cogent article. Not merely informative and useful, but timely.
Well done, and thank you for being literate.
My 10th grade English teacher, Mrs. Fischer would be approve and be proud of you. Mr Hoag, Civics, would be steaming because you’re right AND conservative.
If they all are original constructionists and interpret the constitution properly, in line with the founders intentioms, as per the federalist papers and other of their writings,
I would care less about their external wrappings and colors.
Whizzer White.
Bonus points if you don’t have to look up ‘why’.
A Civics teacher? Man you must be old!
(So am I)
White was one of the more conservative members of the court by the time he retired, but he kept to tradition and waited for a Democrat president to replace him since a Democrat put him on the bench. (Not all justices can do this, for health reasons).
This contrasts with David Souter, who was put on the court by Bush 41, sailed leftward, and didn’t step down until Bush 43 left office so Obama could replace him. (Souter was, and still is, quite healthy,)
Great post!!
Bump
Great post!
Taxman Bravo Zulu!
Interesting, sobering facts.
I had not realized this relationship: Ginsberg replaced a conservative, anti-abortion, constitutionalist, white male!
The get along gang.
Correct, after a brief hearing.
...was nominated in 1993 by President Bill Clinton to replace retiring Supreme Court Justice Byron White, a long-serving justice nominated by President John F. Kennedy in 1962.
Thanks Robert A Cook PE.
And still light in the loafers.
Great essay, thank you.
Souter was most likely a homosexual himself, and was badly beaten while trolling (er, walking through) a Washington DC park after dark for more contacts.
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