Picking the SCOTUS Justice is not chess

 

After the death of Justice Ruth Bader Ginsburg on the 18^th of September, there is much hoo-ha electrifying the air about the possibility of the Trump administration, and the Republican majority Senate, electing a conservative Justice in the Supreme Court of the United States (SCOTUS) before the election.

 

The nine Supreme Court Justices represent the highest judiciary committee of the United States. With its interpretation of the Constitution, the Supreme Court can affect the laws of the country. The famous Roe v Wade decision in 1973 is such a case, which changed abortion laws across the land. Hence the desire for both parties to ensure Justices with their political leanings are placed into the Court.

 

But, whatever one might think of the Republican’s flip-flopping about whether a ‘lame-duck’ president should be able to nominate a SCOTUS Justice, the Democrat’s overpitched appeal to the cult of personality and The Feudal Spirit, as Bertie Wooster might have put it, makes one question whether they play politics for anything other than power.

 

It is true that Ginsburg was a remarkable figure – the second ever woman to be nominated to the Supreme Court and a strong-willed individual and someone who exemplified determination and hard work. But virtually all the Supreme Justices are remarkable people. Take Clarence Thomas, who was born into a poor family, a descendent of slaves, and whose first language was Gullah. Or Sandra Day O’Connor, daughter of a Texas rancher who became the first woman on the Supreme Court.

 

But if one simply judged by the media and Democratic talking heads, one might be excused to think that the Messiah has passed. Then there is the strange entreat about Ginsburg’s dying wish, as reported by NPR, where she apparently dictated to her granddaughter that “My most fervent wish is that I will not be replaced until a new president is installed.”

 

It’s rather sad that this statement, made by the dying 87 year old woman, is being paraded by the Democrats as a sort of pennant. It is in fact a moment of weakness that revealed Ginsburg as a strong party politic partisan, which, for someone who was until her dying day a Supreme Court Justice, is not a legacy to be emulated.

 

This didn’t stop hyper-partisans like AOC denouncing her potential replacement as “violating her dying wish” in Medieval fashion, as if the Constitutional Republic of the United States runs not on laws and procedures but on the whims of those favoured by the extreme progressives. Others, like writer Reza Aslan and Emmett Macfarlane, professor of Political Sciences at the University of Waterloo, have openly threatened to burn down Congress if Ginsburg is replaced.

 

To those foaming at the mouth with self-righteous outrage, one might point to a few things that hopefully will make them pause and think. For one thing, it certainly can’t be blamed on the Republicans that Ginsburg died at such a political moment.

 

Ginsburg was diagnosed with colon cancer in 1999, when, to her enormous credit, she did not miss a day of work even as she underwent chemo and radiation therapy. The cancer returned in 2009 in the pancreas. She could have voluntarily vacated her seat in 2009, when Obama was at the height of his popularity, and with her, already in her late 70’s, having served 16 years on the Supreme Court. However she retained her seat throughout Obama’s eight years, possibly thinking that she might retire during Clinton’s predicted Presidency in 2016. If so, her open ire against Trump is perhaps understandable, if nevertheless still unfortunate.

 

Secondly, if one is adamant to do as Ginsburg says, then what about her statement in 2016, when she said that “nothing in the Constitution” precludes Obama from nominating a Supreme Justice in the twilight of his second term? While the Democrats were livid at that time when the Republican majority Senate blocked Obama’s nominee Merrick Garland, ironically it was Democrat Joe Biden in 1992 who paved the way, arguing that a Republican SCOTUS nomination by Bush Senior should be delayed as the Democrats expected a Clinton election victory; an argument that became known as the ‘Biden Rule’.

 

Thirdly, piling ironies upon each other, it was the Democrats, led by Senate Majority Leader Harry Reid, who in 2013 used the nuclear option to change to rule on Senate voting for Supreme Court Justices. The Democrats lowered the previous requirement of 60 votes to a simple majority of 51 in the 100 seat Senate. Every Republican senator and three Democrats voted against this at the time but lost. Now, the same rule altered by the Democrats to make their lives easier when they had a majority in the Senate, has become a rod for their own backs, allowing Trump to elect Neil Gorsuch (54-45), and Brett Kavanaugh (50-48). Whomever Trump nominates to replace Ginsburg, there is a good chance that in the Republican majority Senate (53-45, with 2 independents) the nominee will be confirmed.

 

Reading back on the history, it appears that the Democrats think of electing Supreme Court Justices, and indeed elections, as a game of chess where each side takes a turn. Except in the case of the Democrats, the rules can be changed by them whenever they see fit. If the opposition makes a good move using the new haphazard rules, it’s inevitably outrageous.

 

This short-sightedness means that inevitably what may have benefitted them in the short run will benefit the other side, and more importantly corrupt the intricate checks and balances of powers that undergirds the entire Republic in the meantime.

 

It’s high time that both sides, especially the petulant Democrats and its proxies, stopped playing political games and do things according to the law. For this reason, another Constitutionalist, originalist and textualist Justice may not be a bad idea. Lest there are no law worth the paper it is printed on when laws are discarded like yesterday’s fashion because it will impede the caprices of a party that is veering dangerously towards the cliff.