To Move Forward with a SCOTUS Nomination … or Not

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The Scales of Justice

Liberal Supreme Court Justice Ruth Bader Ginsburg passed away yesterday evening. And my Facebook and Twitter feeds blew up.

President Trump will nominate a new justice in the coming days. Senate Majority Leader Mitch McConnell has said he will bring a vote on the President’s nomination to the Senate floor. We could have a new justice on the Supreme Court of the United States (SCOTUS) before or shortly after the November 3, 2020 elections.

According to the US Constitution, the President’s job is to nominate SCOTUS Justices and the Senate’s job is to give “advice and consent”. Legally, the process could begin immediately. But is that the right thing to do?

We are a country of Law and Order. The Constitution was written to preserve the rights of the People and restrain the US Government (in sharp contrast to the Left’s suggestions that the Constitution is to restrain the People, preserving the right of the Government).

Our nation is deeply divided among political lines. Following the death of George Floyd at the hands of a Minnesota Police Officer, we have already seen months of nightly riots (called “mostly peaceful protests” by the “mainstream” media) in the streets of Portland, Seattle, New York, among other cities. Conservative activist Candace Owens tweeted, “Ruth Badger (sic) Ginsburg has passed away. Pray for the Ginsburg family, but also pray for America. If you thought you saw the face of true evil with the Democrats’ treatment of Brett Kavanaugh— you ain’t see nothing yet.”

Last night, as Twitter lit up on news of Justice Ginsburg’s death, Reza Aslan tweeted, “If they even TRY to replace RBG we burn the entire f*cking thing down.” I don’t know what Aslan threatens to burn down, but it doesn’t sound good.

Even in the day of “tolerance”, we are at a point where bullies’ comments are taken seriously and played out. But then again, I don’t remember any of President Trump’s “bully rhetoric” played out, resulting in any lives lost. But I digress.

In 2016, SCOTUS Justice Antonin Scalia died. Then-President Obama nominated Merrick Garland to fill Scalia’s vacancy. Mitch McConnell said that he would block Garland’s nomination until after the upcoming election in order for the People to decide, which resulted in Donald Trump getting to nominate Neil Gorsuch to the SCOTUS.

Many on the Left are calling McConnell hypocritical now. But a few months ago, McConnell clarified his statement by saying that since the President (Obama) and the Senate majority were led by opposite parties, the People should decide in the election which way they want to go. And the People decided. In the interview a few months ago, McConnell said that since the President (Trump) and the Senate were led by the same party, he would have no problem presenting the President’s nominated justice. On a side note, in 2016, then-Vice President Joe Biden was in favor of Garland’s nomination and said the Senate should be allowed to consider Garland.

Senator Ted Cruz pointed out on Sean Hannity’s TV show last night — and Tweeted today — that especially in light of the Democrats’ threats to contest the election — and Hillary Clinton’s admonition that “Joe Biden should not concede under any circumstances”, having an even number of SCOTUS Justices could lead to a Constitutional Crisis if the 2020 election is challenged, as was the 2000 election. Cruz is in favor of the Senate considering a nominee. National Review wrote this article on August 7, 2020, “History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020“. It’s worth the read.

A couple of friends on Facebook stated last night that the stakes of the election had just been raised significantly. As President Obama stated several years ago, “Elections have consequences.” I agree.

In recent years, SCOTUS has made several anti-Constitutional decisions — at least as I read the Constitution. In fact, the Roe v. Wade decision in 1973 was Unconstitutional; the Constitution does not guarantee a “right to privacy” as argued, which was the main reason for approving nation-wide abortions. The SCOTUS decision in the 2015 Obergefell v. Hodges case legalizing same-sex marriage was decided on a 5-4 split decision. (Note: Ted Cruz, in his recent book One Vote Away, chronicles other narrow 5-4 SCOTUS decisions).

So where does that leave us? Clearly, we are at a crossroads. Clearly, the Rule of Law allows going forward with a Supreme Court nomination. If we — as a nation — choose to postpone the nomination, we should do so independent of threats of riots. We cannot allow bullying to deter following the Law at this crucial time. But the question is, “Is now the time to move forward with a nomination?” This is what Ginsburg said in 2016, “There’s nothing in the Constitution that says the president stops being president in his last year,”… Several months later, Ginsburg said having only eight justices on the Supreme Court is not good.

One friend suggested on Facebook that Trump should go with the “nuclear option”. The Nuclear Option would involve a “Recess Appointment” of a Justice while the Senate is not in session during three consecutive days. This would prevent a Constitutional Crisis for deciding a contested election. But the Recess Appointment would be challenged and there would be a normal confirmation process. The appointment could be short-lived.

This could be political suicide for Trump and McConnell.

Is it worth the possible political fallout ahead of the election? On the other hand, it could incentivize more citizens — on both sides of the aisle — to vote in November.

But if Trump is able to get a confirmed nomination, a Constitutional-originalist-leaning SCOTUS (not “conservative”) would have ramifications that would last for generations. If Trump wins and appoints additional Justices, in the event they die or retire, that would result in even fewer narrow decisions for SCOTUS. The only way to overcome this, should Biden/Harris win would be to pack the SCOTUS with additional liberal Justices, as FDR threatened to do and add two or four more Justices. After all, the Constitution doesn’t prescribe how many Justices will serve.

The stakes are high.
This election just became less about two candidates
and more about abortion, religious freedom, and Constitutional fidelity.*

If they haven’t begun to already, Christians need to
humbly pray, seek God, and clean up our act and vote
.

2Chronicles 7:14

* I plan to write another post about Constitutional fidelity soon and will post a link here.

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