The Death of Ruth Bader Ginsburg:
Left Now Will Pay Price for Turning Courts into Political BattlefieldRepublicans have no choice but to
move ahead with a nomination, hearings, and vote.
Via American Spectator
As news of the death of Ruth Bader Ginsburg spread, the left-wing twittersphere exploded. Ginsburg was widely seen as single-handedly holding back the blood-thirsty reactionary Trump-crazy hordes. The Independent’s Holly Baxter lamented: “Sometimes it felt like she was America’s last hope.” Ginsburg’s passing loosed fear, frustration, anger, and defiance among the liberal legions.
The politics of her replacement immediately dominated their thoughts. Many cited as holy doctrine her comment, reported by her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.” Others insisted that if Senate Majority Leader Mitch McConnell had a shred of decency — which they all agreed that he obviously did not — he would not seek to fill her seat before the election. Many remained traumatized over the failure to confirm Merrick Garland and losing “their” seat.
In fact, it is sad that a life so well lived did not benefit from even the shortest decent interval before considering the politics. Ginsburg was smart, determined, principled, resilient, and decent. A pathbreaker at a time when women were rare in the bar and on the bench, she was warm and collegial, her friendship with Antonin Scalia gaining particular attention. They could engage in rhetorical battle in the morning and attend opera together at night. The ability to not only respect but befriend those with whom one profoundly disagrees is something to be treasured.
However, the politics is impossible to ignore. And the fault lies with the Left. Marxists of all sorts never viewed the courts as anything but tools of oppression, that had to be manipulated to advance the revolution. Alas, modern liberals also abandoned fidelity to the rule of law in reality if not rhetoric. Their commitment to a “living constitution” — the evolving meaning of which depended upon any number of factors, including, it sometimes seemed, sunspots and the phase of the moon — turned them into politicians and the courts into continuing constitutional conventions.
Indeed, the game was hopelessly rigged. Liberal jurists would make a dramatic advance toward presumed human utopia. Then they would insist that judicial conservatives respect precedent and make the ruling permanent, immune from reconsideration. In this way the legal ratchet worked only one way. The problem was reinforced by the Left’s control of the legal academy, which produced the jurisprudential gibberish which aided and augmented the march of the judicial left.
This process required those who believed that the Constitution was supposed to mean something to pay close attention to the philosophical vision of prospective nominees. If both sides believed that they were determining rather than making law, interpretive differences would not be so great. But that is no longer the case. So appointments are not interchangeable. Leaving a vacancy for those who don’t believe the basics, that judges are supposed to act like, well, judges, is no option.
So President Donald Trump and GOP legislators have no choice. If they are faithful to their oaths of office, they must nominate and approve a new justice. Ginsburg’s supposed judicial last testament was politics, not principle, as was her determination to retain her seat even unto death. Had the president been Barack Obama, one doubts she would have said it and her granddaughter would have reported it. Nor would the Left have paid it the slightest attention. The law requires that her position be filled, the timing of which is not her decision. Imagine the left-wing derision had Scalia voiced similar sentiments.
As to confirming a justice in a presidential election year, McConnell says there will be a vote on the president’s nominee. The Left professes to be shocked, shocked at his rank hypocrisy, but no one could imagine that either side would let consistency get in the way of smart politics. Is there any American who seriously believes that Democratic Senate leader Chuck Schumer (or Harry Reid before) would forgo putting a solid liberal vote on the Supreme Court if given the opportunity? The claim is beyond risible. Schumer made the obligatory tweet: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” However, flip the situation around and Schumer would have spent last night on the phone plotting confirmation strategy.
Almost certainly Trump and McConnell have prepared and choreographed the process, given Ginsburg’s lengthy illness. The nominee should already have been decided.
Read More Full Article By Doug Bandow @ American Spectator
Bruce Bawer is the author of several books, including The Victims Revolution, While Europe Slept, and the novel The Alhambra.