With the death of Justice Ruth Bader Ginsburg last Friday, the political world was thrown into hysterics. Democrats are threatening to set the Supreme Court building and the White House ablaze if President Trump attempts to nominate a replacement for the Notorious RBG before the November election.
Even if they were serious about their histrionic, treasonous threat, President Trump should do it, and Senate Republicans should act speedily to confirm his nominee. For that matter, President Trump should appoint the most stridently right-wing, pro-life, socially conservative, religious justice possible.
If the Kavanaugh hearings taught us anything, the Left will pillory any mildly conservative nominee to the Court. Kavanaugh is a Beltway Dudley Do-Right, and he was treated as a de facto stand-in for every unpleasant interaction a woman has ever had with a man. If the Left treated him so shabbily, why not go for broke and get the second coming of Antonin Scalia, or a young Clarence Thomas clone?
When I first heard the news, I remembered President Obama’s Merrick Garland appointment, and how Senate Majority Leader Mitch McConnell refused to hold confirmation hearings. That was entirely constitutional, both for the president to nominate, and for the Senate to decline to confirm. McConnell’s rationale was that the Senate should not confirm a nominee during a presidential election year, so as to give the people a chance to vote for new leadership first.
My initial reaction was, “Well, screw it—just slam in a nominee and control SCOTUS for generations.” The Senate isn’t bound by an unwritten rule or custom, and the Left has broken so many rules (including threatening to impeach Trump for performing his constitutional duty to make an appointment), it’s time for us to do so to win.
But then my younger brother informed me that a confirmation at this time would not be a breach of senatorial custom. The rule that McConnell invoked in 2016 only applies when the President is one party, and the Senate is controlled by the opposing party. Presidents who have attempted nominations in those conditions during election years have failed. Ted Cruz covers it beautifully in a short YouTube video:
Of course, McConnell warned then-Senate Majority Leader Harry Reid in 2009 when the Senate got rid of its requirement that sixty Senators were necessary to confirm Supreme Court nominees that it would one day come back to haunt the Democrats. The price of their political expediency could very well be—let us pray!—a conservative-controlled Court.
Sadly, it seems that the Democrats will keep moving the goal posts, as usual. The cry now is that if Trump gets his nominee before the election, the Democrats will engage in court-packing should they win the presidency and Congress; in other words, they’ll add Supreme Court seats to dilute the conservative majority.
Congress has the authority to alter the number of Supreme Court seats (when the Constitution was first ratified, the Court only had six justices, rather than the present-day nine). However, the last infamous example of court-packing—Franklin Roosevelt’s ham-fisted attempt to inflate the Court to fifteen justices from nine—was met with severe push-back from even his own party, which saw it for the transparently naked power-grab it was. Democrats nearly ninety years later are all too eager to engage in that power grab.
Therefore, even if President Trump gets his nominee confirmed before the 3 November election, it could all be undone with a Biden win and a “blue wave” seizing control of the Senate. That’s why it’s all the more imperative—especially in swing States—to get out and vote for Trump. The Supreme Court pick will be meaningless if Democrats take control of the levers of power again.
Nevertheless, Senate Republicans need to confirm—speedily—whoever President Trump puts forward as his nominee (hopefully Amy Coney Barrett). That decisive action could rally millions of conservatives to get out to vote for Trump (and vulnerable Republican Senators) in November.
More importantly, it will—barring progressive court-packing—secure the Court for conservatives for at least a generation, and possibly beyond. If President Trump is reelected and Republicans maintain the Senate, it may then be advisable—as much as I hate to suggest it—for Justice Thomas to step down, thereby allowing Trump to appoint a younger conservative who can maintain the conservative majority for another thirty or forty years.
Big things are afoot. The Republicans and Trump may just have one last shot to save the Republic.
Donate to The Portly Politico
Support quality commentary on politics, education, culture, and the arts with your one-time donation.