Module 4

 

The reason that the filling of Justice Ginsburg's seat on the Supreme Court is one of both very complicated and uncomplicated political fallout.  The complicated bit is that an election year SCOTUS nomination actually happened in recent history, and was a high point of controversy during the Obama presidency. While historically there have been contentious senate confirmations, this was unique. Primarily how Senate Republicans did not allow for the confirmation process of Obama nominee Merrick Garland to begin at all. At the time the excuse publicly given was that it was not in American political tradition for an outgoing president to select a Supreme Court member. Texas Senator Ted Cruz is quoted saying "There is a long tradition that you don't do this in an election year." While (the now) Senate Judiciary Chair Lindsey Graham said "I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president,”

The major controversy surrounding the Republican party now, is that Senate Republicans have now decided election year confirmations are appropriate. The same Senator Lindsey Graham of the not so great state of South Carolina recently said this "I therefore think it is important that we proceed expeditiously to process any nomination made by President Trump to fill this vacancy," later saying of his Democratic colleagues questioning his hypocrisy  "I am certain if the shoe were on the other foot, you would do the same." Which is a major switch in what the American people accepted for the modus operandi of the Federal Government. However this quote from Utah Republican Mitt Romney is the most direct and true I found on the Republican side, saying: 

"My decision regarding a Supreme Court nomination is not the result of a subjective test of 'fairness' which, like beauty, is in the eye of the beholder. It is based on the immutable fairness of following the law, which in this case is the constitution and precedent,"  I like this quote because Romney is right, there is no such thing as fair. However as far as precedent is concerned, The “Thurmond Rule” has been an unwritten Senate rule since the early 1960’s, named after Satan incarnate and Senator; Strom Thurmond (Seriously a BAD GUY.) According to a 2008 Congressional Research Service report the rule is “at some point in a presidential election year, the Judiciary Committee and the Senate no longer act on judicial nominations — with exceptions sometimes made for nominees who have bipartisan support from Senate committee and party leaders.” (CRS)

Senate Democrats are obviously arguing for a calm and unrushed process, specifically until after the November general elections. Which is politically convenient for them as many Democratic Senate challengers are polling even or ahead of current Republican incumbents. Recently the democratic response to Republicans has been another complex political threat “If he [McConnell] holds a vote in 2020, we pack the court in 2021. It’s that simple.” Rep Joe Kennedy III. Indicating that if Republicans proceed as they are, Democrats would simply expand the size of the court to re-balance. “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Senator Ed Markey.  Which was particularly aggressive language, however, Senate Minority leader Chuck Schumer issued what I found to be the strongest rhetoric used yet. “If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year.” Indicating that full scale political retribution would be on the table in a post election D.C. 

Now why is this all so important? Well we would not be friends if you did not understand the weight, majesty and power that makes up the Supreme Court. However for the sake of this exercise I will say that all of this controversy, and anger is not about Senate rules. It is about the fact that many of the most important legal decisions to ever face our nation could be overturned by a conservative court. That means voting rights, marriage equality, and really dead center in all of the controversy is Roe V Wade, the landmark decision where the Court ruled that “the Constitution of the United States protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction.” 

That's what it's all about, in truth. We could go back and forth on who is right and wrong in terms of precedent, procedure or decorum. However at the heart of this conflict is the most divisive and controversial political topic in America.

That being said it is important to acknowledge that the intensity of feeling on the left is multiplied by heartbreak around RBGs death. This was not a justice who earned respect or honors posthumously from academics and legal scholars (though she will.) This woman was a liberal lion who defended the rights of the many her entire career, a hero to men and women all over the world, and so to have her seat filled in a rushed-politically dark way, makes it all that much worse.

I end with President Obama's statement on the process.

“A basic principle of the law – and of everyday fairness – is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment... The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle.”

(May




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