Comment Of The Day: “Comment Of The Day: ‘On The Death Of Justice Ginsburg'”

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.

23 thoughts on “Comment Of The Day: “Comment Of The Day: ‘On The Death Of Justice Ginsburg'”

  1. ”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.”

    My first thought is that the question of *right & wrong* in this instance needs to be carefully thought-through. And only when the real problem, or the full depth of the problem is seen could one then decide if what McConnell & Party did then is really and truly wrong.

    If war is politics by other means then all politics is a form of war. If now people are thinking and seeing in terms of more open and dramatic civil conflict, then one will, at one point or another, have to take a side. Where then, in relation to the ‘war’ of political struggle, does the welfare of the nation stand?

    It has certainly happened *in history* that in times of civil strife that one faction has annihilated the other faction and ‘imposed its will’. In the Sixties there was a para-military war against various manifestations of radicalism. The part that is very hard to figure out is that even though so-called Sixties Radicalism was substantially defeated, how has it come about that so much that appears to be a continuation of that Radicalism now has so much power and influence in the present?

    On the first Ginsburg blog-post Isaac put it like this:

    At the present time, nearly every major U.S. and global corporation, every Big Data and social media giant, search engines, the Ivy League and most of academia, over 90% of major media outlets, the FBI, IRS and other American Bureaucracies, as well as close to 100% of mainstream entertainment, are all very active in brainwashing in a very specific ideological direction.

    If this is true then how shall we converse *right & wrong*? and what is the proper response to the situation as described? How has this come about? Who or what stands behind it?

    Is there any way to avoid the rancor and the contentiousness of the Culture Wars at this juncture?

    ”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 …”

    What does “in this respect” mean?

    But if you can propose this, you are in a sense getting close to the *real issue*. What I mean is the possibility of a moribund state and certainly of inanition. But if what you propose is true, it does not stand to reason that McConnel’s et al decision is the cause. Rather that the causes have to sought-out. What has happened to this Republic? What I suggest is that everyone who takes a shot at an answer indeed says something, but who has the most relevant discourse on that topic? And who has the “political cures”? (The whole issue then is of course “What has made the Nation sick?”)

    Now, if one cannot get clear about how to go about undertaking this project of definition, and if one cannot get to the ‘moral fortitude’ to do so, there is no hope that one can be a constructive agent in remediating the situation. In fact it is more likely that one would contribute to the on-going *death* as you put it.

  2. Zoebrain wrote, “Doing so less than 70 minutes after RBG’s death was tacky, but fitting for this regime, and arguably such haste is needed.” (Bold Mine)

    I think that the “haste is needed” is a huge point right now because we don’t want SCOTUS having an even number of justices going into a very contentious election in November that could actually need SCOTUS to rule on something related to the election. The possibility of a split vote in SOCTUS over election related issues would be terrible right now.

  3. Haven’t seen Zoe Brain in a hot minute – welcome back. Just dropping by to comment on a few points.

    Firstly, that the Republic isn’t dead, even in this respect. It’s an ugly evolution of what has historically been a non-partisan government function but I’m not convinced that it’s the GOPs fault.

    It’s blatant hypocrisy of course of but hypocrisy outside of core ideology is common in political maneuvering (of both parties) where the ethics of power are a chaotic rats nest of lesser-of-two-evils compromises. I dont think that the timing of judge appointments is really part of the core ideology of American conservatism and very arguably, the Republicans would be fools not to push a judge through. A foolish political party is not one that can ethically exercise power.

    Not a big fan of crystal ball gazing on some of the worst and most unlikely candidates. Seems like a cheap shot to assume bad candidates and make a villain out of the GOP for their imaginary selections. I’m pretty sure this was written before the news came out but the currently reported short list is part and parcel consistent with Republican and Democratic nominations – i.e. it consists of existing high ranking and respected federal judges.

    • The short list is now effectively 2. *
      Both junior judges recently appointed to higher positions by Trump.

      One of which quite blatantly made… mis statements… regarding her political affiliations during her confirmation process. Membership in organisations that could reasonably be called extremist, but not fringe.

      Both of whom have expressed …disdain, if not contempt.. for stare decisis, though respect for precedent as long as it only applied to lower courts.

      What could only be described as “Activist Judges”, as activist as, well, RBG herself in some of her dissents.

      * 3 if you think Ivana Trump is a contender… I gave up on saying “He can’t DO that” a long time ago, though there are many equal grotesqueries Trump hasn’t even hinted at, so things could definitely be worse.

  4. “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 mean, Democrats have already jettisoned the filibuster. In fact their breaking of it years ago is one of the leading reasons why we are where we are.

    Democrats have already indicated they plan on packing the Courts as soon as they get power again, so this “threat” of theirs has nothing to do with the GOP constitutionally replacing RBG.

    • And rest assured they won’t care about what RBG would have wanted. She’s on record as being against having more than nine justices. She’s also made it clear that the president, at any time during his term, has the right to have justices appointed and approved.

    • It’s not a threat. They’re not talking about it, or trying to use it to change GOP behaviour. Dead silence on the subject while they draw up the list of 4 new SCOTUS nominees, and the 200+ additional Federal judges (a much harder task ).

      At least, that’s what I infer.

      Arguably the additional Federal judges are genuinely needed, and in an ideal world, would be selected based on judicial ability rather than their “progressive” political views.

      Please don’t laugh. Let’s just say that breath holding is contra indicated.

  5. And isn’t it the Dem’s fault anyway, though credit to Obama – he expressed a desire for her to step down? In the sense that Ginsburg was a liberal that they would favor and she refused to step down. Why is it hypocrisy when she created a situation of urgency before a contentious election?

  6. Someone else’s thoughts regarding Merrick Garland:

    “The Senate’s responsibility is spelled out in the Constitution. They are to provide advice, and if they approve of the nominee, give their consent.

    “The Senate at that time gave the President their advice: Don’t send us Merrick Garland.

    “The President ignored their advice, and sent them Merrick Garland.

    “The Senate withheld their consent, just as they said they would. Responsibility fulfilled.”

    • I firmly believe the left thinks of the Supreme Court as having any number of endowed chairs. The Ruth Bader Ginsberg Knee Jerk Lefty Endowed Chair is currently empty. Needless to say, under the Constitution, said chair must be filled by a… Knee Jerk Lefty.

      (I read somewhere yesterday that people were insisting a statue of Ginsberg be erected somewhere in D.C. Hilarious. When any statue is being torn down, lefties want a statue of a white woman erected? Aren’t all whites racists?)

      And why are the people on the current short list unacceptable? (Hint: This is a rhetorical question.) Because none of them are Knee Jerk Lefties!

  7. Hi, can you explain to me the part where it says “Ivanka Trump” was nominated? I did a search and that’s only on a parody site.

    I don’t understand why it’s in this post…

    Have I missed the entire point? Please help!

    • It’s part of ZoeBrain’s rhetorical style. Both Roy Moore and Ivanka are complete strawmen here. She’s relying on people not paying attention which you have proven, by your attentiveness, not to work.

  8. When was the Supreme Court’s non-partisan character first really blown up? When it gleefully struck down Roosevelt’s New Deal programs? When Roosevelt attempted to pack the court? Roe v. Wade? Bork’s failed confirmation?

  9. I find the rhetoric hypocritical but not the actual behaviors. Had Schumer led the Senate in 2016 Garland would be there instead of Gorsuch.

    Both sides are acting as we could expect and expecting politicians to behave like Chip an Dale, those wonderfully considerate chipmunks, is naive.

  10. You know, it seems to me that we’re making the wrong comparison when we compare this to 2016.

    What if Scalia had died in 2012, when Obama was running for re-election. Would there have been any real argument with him filling that seat with a leftist justice? Sure, we could even say Merrick Garland.

    The Democrats controlled the White House and the Senate, so yeah they would’ve leaped at the opportunity to flip that seat. I don’t recall for certain, but wasn’t the filibuster still available back then, oh so long ago?

    Even so, I don’t think the Republicans would have filibustered it, unless it was someone totally over the top.

    I think that is a better comparison, especially since Obama seemed to be vulnerable for a while there.

  11. It is and has been an absurdity to think the left(ists)/Democrat party will behave with any “traditional” decorum whether in power or out of it; Republicans have failed to recognize this and play to win the game – which is how Trump got elected. It started in earnest with the contested election decided by the Supreme Court and they’ve bared more fang with each passing year.

    What we’re watching with the Democrats now is getting themselves voted in to power where they’ll then take away more and more rights – ala Venezuela recently and Nazi Germany before that (oh the irony there…).

    What’s concerning is watching how the Chinese Communist Party Virus freakout has shown that – with Democratic governors being the most draconian with what I think are illegal mandates with regard to the “lockdown”. The absolute absurdity of that is allowing some things to be open but not others – why is Walmart allowed to be open, but a lot of smaller businesses, and even beaches, not? Population density is population density no matter where it occurs. And I love how covering the credit card machines with plastic is supposed to do anything – or better still the costco, where I couldn’t order the hot dog from the counter, but instead had to use the grimy, nasty touch screens at the ordering kiosk that they didn’t bother to clean – the germs from people’s hands will transfer to any like surface, so how stupid are those “precautions”? I digress….

    Big tech, more leftists, are happy to put their finger on the scale in this the information age, and we’re worried about the “hypocracy” of Mitch McConnel? On more than one occasion Jack has noted, like our man Herm Edwards, that you play to win the game – yes, within the rules, but lets face it, with the left, as has always been, the rules only apply when it assures them victory.

    Riddle me this – 1968, a Democratic mayor cracked down pretty violently on protestors; in 2020 a Democratic mayor allowed the city to be taken by an anarchist, armed mob group of “protesters” – what happened between then and now?

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