Replacing RBG: Why the Dems Have No Case

Replacing RBG: Why the Dems Have No Case


It was not a huge surprise when Supreme Court Justice Ruth Bader Ginsburg died recently at the age of 87. Named to the high court by President Bill Clinton in 1993, her tenacity in overcoming health conditions that would have killed many less ferocious fighters was remarkable. Given her more recent health issues, I think it’s a reasonable conclusion to draw that she wanted to hold on at least until after Jan. 20 when there might be the chance of a new president, one more receptive to her brand of liberal political views.

We usually can’t plan our deaths, and of course that was the case for RBG, too. While the time and date of her demise could not have been predicted, what was predictable was how, no sooner than she had taken her last breath, that the Democrats would immediately raise a ruckus about how the current president should not name her replacement but should leave that to the winner of the upcoming election. Equally predictable, the word they hauled out to apply to Senate Majority Leader Mitch McConnell was “hypocritical” if he proceeded with consideration of any nominee named by President Donald Trump. This because it was McConnell who refused to consider the naming of Merrick Garland to the court by former President Barack Obama to replace Justice Antonin Scalia in the last year of Obama’s term.

The Dems’ wholly owned toadies in the media, as well as the rabble in the street, quickly picked up the same refrain. McConnell wouldn’t give Merrick Garland a hearing, so he shouldn’t give whomever Donald Trump names a hearing, either.

The problem with that line of argument is that it completely ignores long-established precedent, the actual basis for McConnell’s refusal to take Garland up for consideration, and such delicate niceties as the U.S. Constitution. Leave out the details and the facts – something the Dems and their media acolytes have gotten rather proficient at – and it sounds like they have a case. Add in those details and facts, and it becomes clear that they don’t.

The McConnell Doctrine”

Let’s start with McConnell’s reasoning in refusing to bring Obama’s nominee up for consideration while saying he would consider Trump’s nominee. Sometimes referred to as “the McConnell Doctrine,” it wasn’t, as the Dems have asserted, that he wouldn’t consider a SCOTUS nominee in an election year. It’s that the nomination was brought within the context of a divided government: The Democrats controlled the White House, but the Republicans controlled the Senate. That is not the case now, when Republicans control both the White House and the Senate. That is the reason for the different response, not hypocrisy. And McConnell is relying on two centuries of established precedent.

One would need to go back 132 years in American history, to 1888 and the term of President Grover Cleveland, when a Senate controlled by the opposite party considered and approved the appointment of an election-year nominee to the high court. Facing a backlog of cases in the high court, a Republican Senate approved the nomination of Chief Justice Melville Fuller, made by Democratic President Cleveland. There have been 10 cases in American history when an election-year appointment was made by a President of one party to be considered by a Senate of the other party, including six made before the election. Fuller’s appointment was the only one of those to be considered and approved before the election. Of the four made in lame-duck sessions after the election, three were left open to be filled by the winner of the election. Only three nominees of the 10 were filled after election day in a way that favored the elected President, the earliest in 1845, the most recent in 1956.

The Constitution

The Constitution is the basis for all U.S. law and legal precedence. Article II, Section 2, Clause 2 of the Constitution gives the President the right to fill vacancies on the Supreme Court, with “the Advice and Consent of the Senate.” To wit:

He [the President] shall have Power . . . and he shall nominate, and by and with Advice and Consent of the Senate, shall appoint . . . Justices of the Supreme Court . . . “

It doesn’t say anything about whether the nomination and appointment takes place in, or not in, an election year. The president is president, and holds the powers of the president, from noon on the first day of his term until noon on the last. And the Senate has the right to advice and consent to the president’s nominations. This isn’t a matter of debate nor is it a matter of interpretation. The Constitution includes no exceptions or qualifications on this point.

Even Justice Ginsburg herself was clear on the subject. In 2016, while offering support for President Obama’s nominee, she said, “The president is elected for four years, not three years, so the power he has in year three continues into year four.” While urging members of the Senate at that time to “wake up and appreciate that that’s how it should be,” she conceded there is little anyone could do to force the Senate’s hand.

The red herring of RBG’s deathbed wish

The Dems, including no less than Senate Minority Leader Chuck Schumer, who should know better, have made a big deal out of what has been said to be RBG’s deathbed wish. As reportedly transcribed and released by the late Justice’s granddaughter, Clara Spera, she said, “My most fervent wish is that I will not be replaced until a new president is installed.”

To which the proper response is a big, so what? As even RBG would have recognized, the hand does not reach far from the grave. All the more so in matters of state, politics, and the Constitution.

Given some of the less-than-judicious things Ginsburg had to say about Donald Trump, before later retracting them, as well as her very liberal views of the law, it’s no surprise that she didn’t want to be replaced by one of Trump’s nominees. But who the person is who replaces her on the court is not up to her, and neither are the conditions of the appointment. That’s just the way it is, sympathy or not for her preferences. Of course at this point we don’t know whether Trump will succeed himself in office or not. We do know he is President now, and has to power to name a replacement for Ginsburg. As he will, and as he should.

Even more irrelevant are the rantings of House Speaker Nancy Pelosi. Last time I checked, the House plays no part in consideration of or approving a SCOTUS appointment. Nancy says the Dems will “use every arrow in our quiver.” And what arrows are those, Nancy?

The Dems dug their own hole

Until 2013, it took overcoming a Senatorial filibuster – requiring 60 of 100 votes – to approve presidential nominees. That was when then-Senate Majority Leader Harry Reid, not happy because he couldn’t muster enough Democratic votes in the house he led, got rid of the filibuster rule for most presidential appointees, including lower court judges. Old Harry apparently forgot, or never knew, the adage, be careful what you wish for because you just might get it. In 2017 the Republicans, who had taken over control of the Senate, got rid of the filibuster rule for Supreme Court nominees. Thus, it only takes 51 votes today to approve whomever President Trump nominates. As of this writing, it looks like the votes will be there, even if not a single Democrat votes in favor of his appointment (that in itself goes against what has happened in the past when nominees of presidents of both parties have often been approved by overwhelming, even unanimous, votes of both parties, indicative of how partisan politics have become in recent years).

The new crop of radical Dems seem to have no sense of history, since they are now advocating packing the court with additional members to give them the edge on rulings by the high court. Since it was established in 1789 with six justices, the number of justices has ranged from a low of five to a high of 10. But since 1869 Congress – which has the power to set the number of justices – has set the number at 9, where it is today. Having an odd number of justices is important to avoid deadlocks, and even RBG supported keeping the high court at nine justices. Said Ginsburg in 2019, “Nine seems to be a good number. It’s been that way for a long time.” With more ethical sense than many of her supporters, she pointed out the danger of packing the court to further Democratic Party interests, saying, “It would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

The last attempt at packing the court occurred under President Franklin Delano Roosevelt, and it didn’t end well for Roosevelt. With no sense of, or regard for, history, the idea is again being pushed by the radical Dems. If you can’t win on your ideas, win by forcing your ideas on others. Easy-peasy, but disastrous for democracy and our republic.

The need for a full court now

The idea of nine justices and an odd number of justices on the court is perhaps more critically important now than at almost any time in recent memory. With court challenges already being filed over issues related to conduct of the upcoming election, and with tensions and maneuvering to impact the outcome of the vote running high, it is almost inevitable that electoral outcomes in many places across the nation are going to wind up at the Supreme Court. Should the vote divide 4-4 issues will not be decided in final form, and the faith of the American public in the electoral system and process will be even further undermined than it is already. For the high court to be able to rule definitively, whether one agrees with those rulings or not, is essential to settle crucial issues, possibly even including outcome of the vote for president.

Burn it down, blow it up”

The very existence and legitimacy of the rule of law is already under attack, and not just by the rabble in the street. None other than members of the mass media and commentators given wide attention are advocating a destruction of our current system and imposition of their will by any means necessary, even if Biden and the Dems manage to regain control of the White House and Congress. If you have any doubt about that, listen to the words of none other than CNN anchor Don Lemon, who makes up with chutzpah what he lacks in brain power:

“We’re going to have to blow up the entire system,” Lemon said to fellow host Chris Cuomo. “You’re going to have to get rid of the Electoral College, because the minority in this country get to decide who our judges are and who our president is. Is that fair?” And if you had any doubt about what this rabid segment of the population has in mind, Lemon clarified things for you by saying, “And if Joe Biden wins, Democrats can stack the courts and they can do that amendment and get it passed.”

Some go even further, advocating violence and arson. RBG’s body was barely cold when author Reza Aslan, an Iranian-American scholar of religious studies (sic), tweeted, “If they even TRY to replace RBG we burn the entire fucking thing down . . . Over our dead bodies, literally.” Another author, Aaron Gouveia, who claims to know what it takes to raise happy sons, tweeted, “Fuck no. Burn it all down.” And a member of the Wisconsin Ethics Commission – ethics, Dem style, mind you – Scott Ross, writing to Massachusetts Senator Ed Markey, said, “Fucking A, Ed. If you can’t shut it down, burn it down.” And those are authors and supposed keepers of the national ethics. What about the mindless anarchists who have taken over the streets?

Things have sunken so far in this country that when the President and First Lady Melania Trump went to pay their respects to Ruth Bader Ginsburg – whom Trump has called “an amazing woman” – on the steps of the Supreme Court, crowds booed them and chanted, “Vote him out! Vote him out!”

Meanwhile, the cowardly Jell-O Joe Biden, cowering in his Wilmington basement, has once more blown with the political wind. After previously announcing that he would release a list of names of people he would consider for nomination to the Supreme Court should he be elected, he now refuses to, calling it “inappropriate to do so.” While Donald Trump announced his list of prospective high court nominees as he was running for President the first time – it may have been a key factor in his election – and recently added to it, Joe Biden would rather keep voters in the dark.

Asked by a local Wisconsin reporter during one of his rare and brief forays out of his basement – “Should voters know who you’re going to appoint?”– Biden made it clear what he thinks of voters’ right to know whom he supports. “No, they don’t,” he responded. “But they will if I’m elected. They’ll have plenty of time.”

Do you really need to know more than that about where you stand with Jello-O Joe and his Dem power-broker handlers?

Photo credits: Featured image, Ralph Bader Ginsburg, AP Photo/Jacqueline Martin, used under Fair Use

2 Replies to “Replacing RBG: Why the Dems Have No Case”

  1. Another excellent article Frank. We are all in deep trouble if Biden and the Democrats steal this election. America will never be the same again.

  2. Whether they steal it or not, I think we’re in deep trouble if Biden and the Dems come into power (of course, it’s a stretch associating Biden with the word “power” since it’s pretty obvious he’s not in control of the show).

    What amazes me is how people on the left don’t want to be bothered with facts. The bias and blindness is so strong facts don’t even enter into their equation.

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