Ginsburg’s Death and the Dangerous Politics Ahead .By Charles Lipson
Ruth Bader Ginsburg’s life in the law cast a long shadow. In death, she casts a long shadow, too.
Since Justice Ginsburg was both historic figure and reliable liberal vote on the United States Supreme Court, replacing her was always going to be contentious. After all, the court’s direction for years to come is at stake. Candidate Donald Trump made the “activist federal courts” a major campaign issue in 2016. As president, he and Senate Majority Leader Mitch McConnell have delivered on that issue. They have confirmed over 200 new judges, almost all of them strenuously opposed by Democrats. Now, he has been given his third opportunity to nominate a Supreme Court justice. His first appointment replaced the late conservative icon, Antonio Scalia, with another conservative, Neil Gorsuch. His second replaced Anthony Kennedy, a moderate conservative and occasional swing vote, with Brett Kavanaugh, a more consistent conservative vote.
Replacing any Supreme Court justice is important, but substituting a conservative for a liberal giant like Ginsburg or the 82-year-old Justice Stephen Breyer, when he retires, would be far more consequential. That’s why the fight over the Ginsburg’s vacant seat will be so fierce, worse even than the brawl over Kavanaugh, who was smeared by multiple, last-minute allegations of sexual assault, none of which were substantiated. That fight was so toxic that several senior Democrats openly rejected the idea that Kavanaugh should be presumed “innocent until proven guilty,” a bedrock assumption of Anglo-Saxon jurisprudence for over a thousand years.
The Democrats’ immediate demand is for Ginsburg’s seat to be left vacant until a new Senate and president can fill it. Senate Minority Leader Chuck Schumer made that demand Friday night, shortly after Ginsburg’s death was announced. All other Democrats will follow. They will pointedly add that the Republicans, who controlled in the Senate in 2016, refused to give Merrick Garland a hearing or vote after President Obama nominated him to fill Scalia’s seat. Republicans said then that nine months was too close to the election. It would be grossly unfair, Democrats say, for those same Republicans to move forward with their own nomination now.
McConnell has already rejected that argument, promising to fill every vacancy on every federal court during the current Congress. He is saying that the current situation is different since the presidency and Senate are now controlled by the same party. He will quote Democrats’ statements in 2016, when they insisted on voting immediately to fill the Supreme Court vacancy.
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