President Trump Can and Should Nominate Ginsberg Replacement

Details: Category: Analysis; Created: 23 September 2020

Mea Culpa

I learned of Justice Ginsberg's death while in a conversation with a very angry Democrat. (I'm presuming she's a Democrat; I'm actually quite sure she was angry :-) Also, I was unfamiliar at the time with the 2016 history of McConnell's blocking an Obama court nominee. I was feeling reconciliatory because I genuinely did not want her experiencing anger, so based on what she told me about McConnell's 2016 statements, I agreed it would be hypocritical of him to allow a current nomination. It was obviously foolish of me to comment without all the facts and I apologize to her if what follows seems an about face or hypocritical... but... I now know a lot more about the historical vs current circumstances.

McConnell is indeed guilty of hypocrisy, but not about the current appointment. He was a hypocrite when he rationalized his position on the Merrick Garland appointment in 2016. The truth is that it was politics then, and its politics now. The same goes for the democrats making the reverse cases, both then and now. But rather than trying to shame politicians into always being honest, blunt and forthright (good luck with that), let's look at the real issues.

The (Only) Relevant Facts

The Constitution says, "The President ... by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." [Article 2, Section 2] That's not taken out of context. Read it. (That's not a challenge, it's a plea.)

There are two relevant and unambiguous facts here:

It is the sole privilege and responsibility of the President to nominate Justices. Note also that it does not say he "can" or "may", but that he "shall" do so.
The Senate has a responsibility to advise, e.g., "That nominee is a lousy idea, Mr. President!" and to consent, or presumably withhold consent. Note that it is the Senate, not the Congress, nor the House that must consent.

Democrats are currently complaining that this is exercise of "pure power" by the Republicans. Of course it is. That's the way it works. That's the way it worked when the Affordable Care Act was pushed through in a profoundly partisan act of Congress. That's the way it always works. To repeat a famous quote, "Government is force."

People on both sides have said, and are currently saying, foolish things like "... the American people should have a say" in the next Supreme Court Justice. If taken as they clearly mean it, that's just flatly false. First, the American people do not, and should not under our constitution, have any direct say in who a nomination will be. (See points 1 & 2 above.) Second, to the extent that they have an indirect right, they've already excercised that right. In the election of 2016, the American people had their say and what they said was, "We want Donald Trump to hold the office of President from January 21, 2017 through January 21, 2021." This election cycle, the people will have their say about who should make these kinds of decisions from January 21, 2021 to January 21, 2025.

Regarding Precedents and "Norms"

The claim of relevant "norms" is what caused me to concede that it sounded like McConnell was currently being a hypocrite. But of course it's always more complicated than either side makes out.

I foolishly assumed that this "norm" was some resolution or recommendation or bipartisan agreement of Congress still currently in effect. But as far as I can find, any "norm" is actually just a pragmatic recognition that putting forth a nominee close to an election is futile, when and if the opposing party controls the Senate and will just delay or refuse the appointment. Presidents generally just don't waste the time.

Dan McLaughlin of the National Review wrote an excellent editorial entitled, "History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020". Note that this was written in early August, well over a month before Justice Ginsberg's death:

Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.

Please note that the article quoted above bears several important earmarks of trustworthiness:

Lots of specifics and clarifications, such as whether his count included nominations existing at the beginning of an election year. Phrases like "In a[n]... election year, or..., "lame-duck session...", "counts vacancies", "... but not vacancies...", "such as happened..." These all drive toward not just clarity, but precision.
Lots of quantifiable, verifiable claims, such as "29 times in American history". Easily verified facts, which brings accountability.
Complete lack of ambiguity, e.g. "The president made a nomination in all twenty-nine cases." If it were to turn out to be something less, I don't see how he can claim he meant something else.

Now listen closely to Democrat talking points and watch for "weasel words". I just heard Senator Coons (D) saying that "this" has never before happened in American history. Obviously that perked my ears since I'd just read the article above. So I listened to the quote more closely. There were at least 3 ways he can "weasel" out of the statement if he were ever called on it (which he won't be, because the press will not hold Democrats accountable for such distortions):

First, Coons was referring to "this", which is obviously ambiguous. Contrast with "The president made a nomination".
Coons' statement included the following (from memory, but I stand by the substance), "never before, at a time when half the country has already begun voting,..." As far as I know, it has never before been the case that half the country had voting options this early. In other words, I think he may be comparing this election to precisely zero previous elections.
What he said had "never" happened before was "moving forward with the process". Not only did he not define "moving forward", he didn't even specify whether he meant the nomination or confirmation hearings, etc. This kind of statement is impossible to "fact check" without reading into it. And of course, reading into it is exactly what he wants you to do; to believe something that is sounds like he said, but never really did.

By the way, for years and years I considered things like the last point to be insignificant - it sounds picky. But then I noticed that it was almost always Democrats who made such weaselly statements that then often turned out to be blatantly false. When I started watching closely, that was the rule year after year, for decades, and obviously accelerating in recent years. Watch closely and you'll find that Democrat leadership (Pelosi, Schumer, Schiff, Nadler, etc.) are all pros at it. And of course, the observation IS picky. That's why they can get away with it. But its also true.