The rush to fill the Supreme Court vacancy caused by the death of Associate Justice Ruth Bader Ginsberg so close to a presidential election is unseemly, say the Democrats. But the winner of the coming election, if it as close as most believe it will be, may not be known until days after election day, owing to the large volume of mailed ballots and the differences among the states regarding the rules for when they must be received, processed, counted and otherwise handled. Three battleground states have recently revised their rules, Michigan being the latest as of this writing, where a state judge ruled that ballots that arrive up to 14 days late must be counted as long as they are postmarked by Nov.2. There is litigation pending in other states as well. Surveys show that far more Democrats than Republicans will vote by mail, so most of the late ballots will favor the Harris/Biden, sorry, Biden/Harris ticket. Therefore, Hillary Clinton advised Joe Biden not to concede, no matter what.
A contested outcome seems likely unless the winner enjoys a landslide victory which few expect to happen. This is the principal reason why it is important to have a full court seated. A less noble but still valid reason is because that’s the way the game of politics is played today. Does anyone doubt that if the shoe were on the other foot, the left one, that is, a Democrat president would promptly nominate a liberal judge and a Democrat Senate would promptly confirm that nominee, no matter how close to election day. Republicans would be foolish to pass on this opportunity and President Trump’s base would never forgive him.
The 2000 presidential election was finally decided when the Supreme Court ordered Florida to cease recounting and dithering over the meaning of hanging chads and stray marks on ballots. Al Gore, who won the popular vote, then conceded and the transition was amicable enough. But that was then. Nothing about politics is very amicable now and if the court is required to intervene, all nine justices should be seated to avoid a possible deadlock or claims that a ruling might have been different if the ninth justice had been seated.
Democrats have their hair on fire over Mr. Trump’s decision to exercise his constitutional right and duty to expeditiously act to fill the vacancy. Senate Minority Leader Chuck Schumer darkly warned that “nothing is off the table”, as if it ever was. House Speaker Nancy Pelosi ominously spoke of having “more arrows in her quiver”. It’s enough to make one, well, quiver! And a Biden victory would almost certainly lead to a push for statehood for the District of Columbia and Puerto Rico anyway which would result in four more reliably Democrat senators.
Democrats are bemoaning the politicization of the court. But it was the Democrats who started that politicization with the “borking” of Judge Robert Bork, Ronald Reagan’s nominee to the court. Mr. Biden, hopefully, can still remember the attacks on the eminently-qualified Judge Bork since he presided over those hearings as Chairman of the Senate Judicial Committee in 1987. That started a habit of Democrats “borking” Republican nominees to the court including Abe Fortas, Harrold Carlswell, Manuel Estrada, Clarence Thomas, who described the eleventh-hour smear on his character as a “high-tech lynching” and, most recently, Brett Kavanaugh, who was subjected to uncorroborated charges of sexual misbehavior dating back to high school. California’s own Sen. Dianne Feinstein and then-Sen. Kamala Harris helped lead that attempt at character assassination. There’s little doubt that Mr. Trump’s nominee, Judge Amy Coney Barrett, of the Seventh U.S. Circuit Court of Appeals and the mother of seven children, two of them adopted from Haiti and one with Down Syndrome, will be subjected to vicious attacks, not because of her record and qualifications which are impeccable, but because she is an orginalist who interprets the law the way it was written, not the way that activists wish it had been written, and because she was nominated by the hated Donald Trump.
Democrats began filibustering dozens of Republican appellate court nominees as well until a group of senators from both parties reached a deal to vote to confirm all qualified nominees except for “extraordinary circumstances.” But in 2013, Senate Majority Leader Harry Reid ended that agreement. He was warned that breaking the 60-vote filibuster rule was a double-edged sword that could come back to haunt the Democrats and it did when they tried to filibuster Neil Gorsuch. It only takes 51 votes in the Senate now to confirm and Senate Majority Leader Mitch McConnell apparently has the votes.
It’s true that Mr. Mc Connell denied a senate confirmation hearing to Judge Merrick Garland, former President Barack Obama’s nominee in 2016. But Judge Garland likely would not have been confirmed by the GOP-controlled senate. And, unlike the Democrats, Republicans have never “borked” a nominee to the court. Some Democrats and a few Republicans feel that the late Justice Ginsberg’s wish that her seat, which she filled with great distinction for 27 years, remain vacant until the winner of this election is inaugurated, should be respected. With all due respect to her memory, that isn’t her call. Voters don’t get to select Supreme Court Justices under our Constitution. Presidents do, subject to Senate confirmation, and Mr. Trump is still president.
Kelly is a freelance writer and retired Navy Captain who commanded three San Diego-based ships and the Navy Personnel Research and Development Center and taught ship handling, seamanship and navigation at Naval Base San Diego. He earned his doctorate in education at USD, taught graduate students and was a senior vice-president and Director of Training and Development at Great American Bank. He has written over 1500 newspaper and journal articles and has been a regular contributor to the Eagle&Journal since 2001.