Virtually minutes after news broke regarding the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg last Friday, before acknowledging her marvelous life and remarkable achievements, Senate Minority Leader Chuck Schumer, D-N.Y., publicly admonished, "The American people should have a voice in the selection of their next Supreme Court justice.
"Therefore, this vacancy should not be filled until we have a new president."
Perhaps note here that Schumer specifically referred to a "new" president, not a "newly elected president."
The following day, Sen. Schumer declared that "nothing is off the table for next year" if Republicans confirm a Supreme Court nominee in this Congress. In doing so, Schumer shared the coveted spotlight with Rep. Alexandria Ocasio-Cortez, D-N.Y., who agreed.
U.S. House Speaker Nancy Pelosi, D-Calif., reiterated threats of retribution when asked on Sunday whether those on-the-table options included the possibility of impeaching President Trump and Atty. Gen. William "Bill" Barr should the White House push through a Ginsburg replacement during a lame duck session after Election Day.
Pelosi told George Stephanopoulos on ABC’s "This Week," "We have arrows in our quiver that I’m not about to discuss right now . . . but the fact is, we have a big challenge in our country. This president has threatened to not even accept the results of the election with statements that he and his henchmen have made. So right now, our main goal . . . would be to protect the American people from the coronavirus.
When asked again about warnings that the House wouldn’t "rule anything out," Pelosi responded, "We have a responsibility, we take an oath to protect and defend the Constitution of the United States. We have a responsibility to meet the needs of the American people. When we weigh the equities of protecting our democracy, requires us to use every arrow in our quiver."
All pretense of cageyness aside, prominent Democrats have previously made it very clear how they hope to make their opponents quiver.
They have already been saying for months that if they take control of the White House and Senate they plan to break the 60-vote filibuster rule, pack the Supreme Court with between two and four more justices, and achieve statehood status for the District of Columbia and Puerto Rico to gain two additional reliably blue Senate seats.
So what do Republicans really have to lose by going ahead with filling the Ginsburg vacancy before the election?
After all, the Democrats will attempt to accomplish these agendas in any case.
Besides, it looks like the Republican-dominated Senate now has the number of solid votes needed to get that candidate confirmation done, and very likely, to do so before the November 3 election.
Sen. Mitt Romney, R-Utah., a previous uncertainty, announced yesterday that he will support a pre-election confirmation provided that the nominee is fully qualified.
All of Trump’s five women finalist nominees have enormously impressive jurisprudence records and personal histories, whereas presidential candidate Joe Biden has steadfastly refused to release his list of favored Supreme Court contenders.
As with Sen. Schumer, Biden had immediately jumped on the Ginsburg successor issue last Friday when he told reporters, "Just so there is no doubt, let me be clear: The voters should pick a president, and that president should pick the justices for the Senate to consider."
"This is the position that the United States Senate took in 2016," Biden said, and "That’s the position the United States Senate should take today."
Biden’s remarks were apparently made in a rebuke of Senate Majority Leader Mitch McConnell, R-Ky., who had vowed to take a vote on the Senate floor for whomever Trump nominates for Ginsburg’s vacancy.
That announcement is expected later this week.
Former President Barack Obama also joined the McConnell condemnation chorus on Friday over the Republican-controlled Senate’s refusal to confirm his nominee to replace the late originalist Justice Antonin Scalia, "Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn't fill an open seat on the Supreme Court before a new president was sworn in."
As this writer recalled in last Monday’s column, subsequently and unexpectedly, Donald Trump was elected, nominating Neil Gorsuch who was then confirmed.
Sen. McConnell drew a distinction between the current scenario and the Merrick Garland precedent in 2016 when the Senate was controlled by Republicans and a Democrat president nominated him in an election year.
Now, both the Senate and the presidency, are controlled by Republicans.
McConnell stands on solid precedential and legal grounds. As pointed out in The Wall Street Journal by David Rivkin Jr. and Andrew Grossman last Saturday, when the nation chooses a president and a Senate, it makes its choice about who wields the power to pick and confirm judges.
On the other hand, when the president and Senate have divergent views on judges and judicial philosophy, there’s no clear mandate of what kinds of judges ought to be confirmed.
This precedent has held for well over a century — the last exception being Chief Justice Melville Fuller in 1888, during President Cleveland’s first term. Since then, the Senate hasn’t confirmed a Supreme Court nominee chosen in an election year by a president of the opposite party.
Former Senator Joe Biden, who then chaired the Judiciary Committee, popularized that very understanding when he urged then-President H.W. Bush to refrain from making any Supreme Court nominations back in that 1992 election year.
Biden then explained that the "divided Government" at the time reflected an absence of "nationwide consensus" on constitutional philosophy.
Therefore, the future vice president argued, "Action on a Supreme Court nomination must be put off until after the election is over."
Bush’s failure to act later worked out great for the Democrats.
No Supreme Court vacancy arose until 1993 when a Bill Clinton White House nomination of Ruth Bader Ginsburg easily passed a Democratic Senate with strong Republican backing despite philosophical objections to many of her previous activist judicial rulings.
Contrast this with the militantly aggressive, often hostile treatment of Republican nominees.
An iconic example was the infamous 1987 assault on President Reagan’s outstandingly qualified nominee Robert Bork who even then-Senator Joe Biden had previously said he might agree to confirm.
Bork’s name has since became a verb — as in to be "borked"—after Senator Ted Kennedy issued a demagogic assault on him with false accusations complete with lies about women "forced into back-alley abortions," blacks who would have to "sit at segregated lunch counters," and distortions about his jurisprudence.
The press chimed in, and Bork’s nomination was defeated.
Democrat character assignation tactics continued to become a norm.
Clarence Thomas was summarily smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.
And very recently, we witnessed the salacious sliming of Brett Kavanaugh trumpeting totally uncorroborated claims of women accusers from his high school and college years.
Meanwhile, senator and current vice president candidate Kamala Harris, D-Calif., who sanctimoniously trashed now Justice Kavanaugh over sexual allegations during his confirmation hearings has summarily dismissed similar accusations against her running mate Biden.
Democrats might be wise to consider that the GOP gained two net Senate seats in the 2018 midterm elections following that egregiously ugly Kavanaugh treatment.
This was the first time a party holding the presidency gained Senate seats since 2002.
History has been much kinder regarding Republican treatment of Democratic nominees.
Even Justice Sonia Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes.
Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.
Nevertheless, let’s not expect any commensurate objectivity or charitable good will in the inevitably bloody and enormously consequential confirmation battle ahead.
Larry Bell is an endowed professor of space architecture at the University of Houston where he founded the Sasakawa International Center for Space Architecture (SICSA) and the graduate program in space architecture. Larry has written more than 700 articles for Newsmax and Forbes and is the author of several books. Included are: "How Everything Happened, Including Us" (2020), "Cyberwarfare: Targeting America, Our Infrastructure and Our Future" (2020), "The Weaponization of AI and the Internet: How Global Networks of Infotech Overlords are Expanding Their Control Over Our Lives" (2019), "Reinventing Ourselves: How Technology is Rapidly and Radically Transforming Humanity" (2019), "Thinking Whole: Rejecting Half-Witted Left & Right Brain Limitations" (2018), "Reflections on Oceans and Puddles: One Hundred Reasons to be Enthusiastic, Grateful and Hopeful" (2017), "Cosmic Musings: Contemplating Life Beyond Self" (2016), "Scared Witless: Prophets and Profits of Climate Doom" (2015) and "Climate of Corruption: Politics and Power Behind the Global Warming Hoax" (2011). He is currently working on a new book with Buzz Aldrin, "Beyond Footprints and Flagpoles." Read Larry Bell's Reports — More Here.
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