This is a working day for me, as I have to revise perfectly appropriate legal ethics course materials because a low level bureaucrat at a bar association CLE department literally doesn’t understand what she is charged with approving, Nevertheless, I will be writing here about the developing Dead Ruth Bader Ginsburg Ethics Train Wreck, or whatever I end up calling it because passengers are boarding at a rapid rate.
Zoebrain’s Comment of the Day on the post, “Comment Of The Day: On The Death Of Justice Ginsburg”is an ideal way to get that discussion started, and Behold!— Here it is:
McConnell is as right to expedite a hasty appointment of any reasonably acceptable Trump nominee in September 2020 as he was as wrong to deny a hearing to any Obama nominee whatsoever in February 2016.
To do so would reveal blatant foetid dishonesty and utter hypocrisy, but I see no good argument against it, other than the limited time available for a thorough vetting, 45 days vs 270. Doing so less than 70 minutes after RBG’s death was tacky, but fitting for this regime, and arguably such haste is needed.
Former Alabama Chief Justice Roy Moore? Judicially qualified, would certainly shore up the softening Evangelical support, and, most crucially, would cause Democrats to have conniptions. But not on the current shortlist.
Ivanka Trump? Excellent test of personal loyalty, would embolden personal followers of Trump, would cause Democrats to lose their minds, but would do nothing to encourage Evangelicals, and again, not on the short list.
So most likely one of the many “overturn Roe v Wade, Obergefell v Hodges, and Lawrence v Texas” nominees on the short list. Anyone less extreme would not be acceptable to Evangelicals, not after the relative milquetoasts of Gorsuch and Kavanaugh.
None of the nominees would have any Democrat support of course, regardless of their qualifications or suitability, not after Feb 2016, so their views can be safely ignored.
By doing what he has done, saying that a Trump nominee would be put before the Senate for confirmation, it allows the Democrats to Wave the Bloody Shirt, jettison the filibuster, and add another 4 – or even another 8 – positions to the SCOTUS if they win.
I would argue that this would be fatal to the Republic. I can’t argue well that, given McConnell’s and the GOP’s dishonesty, that the Republic isn’t already dead in this respect, and that this isn’t just burning the corpse in the vain hope of temporarily preventing further infection.
What I would hope is that any such measure would be vetoed by President Biden. But then, I would hope that Trump would nominate an ACLU lawyer to replace RBG. Both would be good for the US. Both would be politically impossible.
Why do I say that such a pollution of the SCOTUS by stacking would be fatal to the Republic, not just damaging to the Republicans? Because the next time the GOP gets Senate, House and Presidency, they’d be compelled to do the same, and the reputation of the SCOTUS as a non partisan arm of government would be permanently shattered, rather than merely maimed. And if they never get all three, we have a one party state. Healthy Democracies rely upon loyal oppositions.
However.. given McConnell and the GOP acting with such flagrant and unashamed hypocrisy, there is no expectation, let alone guarantee, that they wouldn’t do this anyway, now the bounds of “convention” have been torn asunder. As in 2016, if there is political advantage, they will do it. So what a Democratic Congress and Presidency with blood in their eyes does is immaterial.
Ideally, all would be for the State and not the Party. But it is all too human, and one of the few things both sides have convinced themselves of, that the interests of their respective parties *are* the interests of the nation.
The handful of GOP senators queasy at the prospect of such an appointment are also irrelevant in the long term. Whether they vote on party lines for confirmation, or stand on a matter of Principle, is irrelevant as long as those voting on principle are not a substantial majority, let alone a mere handful. The damage has already been done – even though I am forced to agree that a Trump nominee should be voted on, and if at all acceptable, confirmed.
None of the candidates on Trump’s shortlist would be deemed acceptable under these particular circumstances.