Ruth Bader Ginsburg, And Her Replacement

It’s not my way to speak ill of the dead, so let me say a couple of positive things about Justice Ruth Bader Ginsburg:

• She clearly had a very strong work ethic.

• She generally dealt civilly and respectfully with her ideological opponents. In this respect she was the polar opposite of almost all of today’s ideological left. I do not doubt that her long friendship with Justice Scalia was deep and genuine.

Those things said, Justice Ginsburg was not my idea of what a Supreme Court justice should be. Indeed, in many respects, she was the opposite. Rather than write a fresh collection of criticisms, permit me mainly to refer back to two posts on the subject of Justice Ginsburg that I wrote several years ago. On July 21, 2016, it was “Free Speech For Me But Not For Thee”; and on January 1, 2019, it was “Is Ruth Bader Ginsburg A Good Supreme Court Justice?”

I encourage you to read both of those posts in full, but I’ll summarize here and provide a few excerpts. The July 21, 2016 piece made the point that Ginsburg was the most partisan of Supreme Court justices, who used her perch in completely inappropriate ways to advance a political agenda. Excerpt:

A couple of weeks ago Supreme Court Justice Ruth Bader Ginsberg gave several media interviews that then rightly brought her a torrent of criticism.  In the portion that drew the most attention, she rather un-judicially stated a preference for one candidate over the other in the midst of the current presidential campaign.  But in other parts of the interviews that you may not have noticed, she engaged in even more inappropriate conduct by indicating in advance how she would rule on various issues likely to come before the Court.

Basically, she said in so many words that she has already pre-judged pretty much all of the most important issues likely to come before the Court any time soon, and don't waste your breath trying to persuade her otherwise.  OK, we already knew that, but do you have to be quite so explicit?  In one of her most over-the-top statements, she is quoted by Adam Liptak of the New York Times on July 10 as having said "I’d love to see Citizens United overruled."

The occasion for the January 1, 2019 piece was the then-recent issuance of two movies — one a documentary (“RBG”) and the other what they call a bio-pic (“On the Basis of Sex”) — both filled with unqualified praise and even adulation for the justice. My comment:

So is RBG a heroine worthy of great praise and adulation?  If you want my opinion, she's about the worst possible Supreme Court Justice you could ever get.  Why?  Because she has no appreciation of our constitutional order, and of why it makes for a successful country.  Her opinions appear to me to have no overriding rationale other than I'm for whatever our progressive team is for, and I'm against whatever our progressive team is against, and I'll find some basis in the Constitution to make that work.  She is a 100% reliable vote for the liberal bloc (and the official New York Times/Washington Post position) in any case of political significance.

Read the full posts for examples illustrating those general statements.

Anyway, Ginsburg clearly wanted to be replaced by an appointee of a Democratic President, but she also thought that no potential replacement would be as good as she at advancing the progressive cause. So she stayed on to the end of Obama’s second term, expecting Hillary Clinton to win, and she lost that bet.

Needless to say, Joe Biden immediately came out yesterday and demanded that President Trump and the Senate hold off naming a replacement pending the results of the upcoming election. His words were “The voters should pick the President, and the President should pick the justice for the Senate to consider.” Apparently Joe doesn’t realize that the voters actually have picked a President and Senate, which together have full constitutional power and authority to pick a replacement for Ginsburg, right up until January 20, 2021.

Many on the left are making a strenuous point that there is a supposed precedent that the President does not nominate a Supreme Court justice in the last year before an election. Apparently, they have completely forgotten that President Obama nominated Merrick Garland to replace Justice Scalia during that window. The Senate in 2016 failed to confirm Garland — and this year’s Senate may also fail to confirm a Trump nominee. Then again, the Senate may confirm a Trump nominee, whether before or after the election. They have all the way to January 20 to confirm or not.

Of course, Obama did not have to stick with Garland when it became clear that the Senate would not put his confirmation to a vote. Obama could have withdrawn Garland, and come up with another nominee whom the Senate would have confirmed. This would have required Obama to nominate a conservative/constitutionalist jurist, which was something that Obama was not about to do. Instead, Obama preferred to use the failure to confirm Garland as a political issue in the election. That proved to be a losing bet.

Today, the media and Twitter are filled with threats of violence from Democrats in the event that the duly-elected and serving President and Senate should dare to exercise their constitutional authority to install a Supreme Court justice. Steve Hayward has a round-up today at Powerline. Examples (from among many): Former CNN host Reza Aslan, “If they even TRY to replace RBG we burn the entire fucking thing down.”; Writers’ Guild President Beau Willimon, “We’re shutting the country down if Trump and McConnell try to ram through an appointment before the election.”

Last time around, the politics of the Supreme Court appeared to break in favor of the Republicans. Even if more Americans would prefer a Democratic Supreme Court appointee to a Republican one (which I doubt), I find it hard to believe that it is a good political move to engage in threats of violence and disruption against people exercising constitutionally-granted power. Also, I don’t think that President Trump is the kind of guy to back down from a fight.