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Senate’s Supreme Dilemma: When to Vote

Posted on Monday, September 21, 2020
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by AMAC, Robert B. Charles
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80 Comments

Fact:   Liberal jurist and Supreme Court Justice Ruth Ginsburg died on September 18.  That event, not expected prior to 2020 elections, has thrown a wrench into the works.  Most immediately, it puts pressure on Senate Republicans to seat a nominee, while preserving their majority.

Fact:  President Trump intends to nominate a woman to replace Ginsburg.  The nominee will be qualified and judicially conservative, meaning apt to construe words in the Constitution strictly, not filling in blanks, legislating, getting creative, or judicially activist – as Ginsburg was.

Fact:   A concern of conservatives – and liberals – is how the appointee will interpret constitutional provisions and decisions, as well as what weight she accords stare decisis or precedent.  Of special concern is how she sees the 1973 Roe v. Wade decision, which creatively inferred a constitutional right to abortion.

Fact:  The contest will be bitter, as Republican appointees outnumbered Democrats 5-4 before Ginsberg died.  The new mix of 6-3 could roll back activism.  To Republicans, this is promising – worth risking the Senate. To Democrats, it is a perilous, as they revere activism and Roe.

Fact:  The 53-47 Republican-controlled Senate will vote on Trump’s nomination.  See, https://www.politico.com/news/2020/09/18/mcconnell-vows-senate-will-hold-vote-on-ginsburgs-replacement-418021. The vote could be before or after elections, late as January 3rd.

Fact:  While a pre-election vote allows deliberation, it imperils moderate Republicans, like Susan Collins of Maine, Thom Tillis of North Carolina, and Cory Gardner of Colorado.  If forced to vote pre-election, some may balk.  Leadership must count carefully, as losing 3 would require Vice President Pence as tiebreaker; losing 4 would scotch the nomination.

Fact:  Conversely, putting the vote off until after elections presents difficulties. Time would be short; Democrats would delay.  If Democrats won the White House or Senate, they would argue legitimacy requires no vote.  They would pressure Republicans, arguing the new President should nominate, and new Senate confirm.  These obstacles could be overcome, but downstream effects on nominations, judicial legitimacy, and possible court-packing – could be serious.

Fact:  Historically, a nominee by a President of the same party has been confirmed in an election year, while one presented by a president of the opposing party has not.  Thus, in February 2016, when Justice Antonin Scalia – a Republican – died, President Obama nominated Merrick Garland to replace him. A Republican Senate did not vote.  Trump won in 2016, and Neil Gorsuch was then nominated and confirmed.

Fact:  This distinction is challenged by Democrats, who argue any nomination in an election year should wait.  But that puts the seat in double jeopardy:  If Trump wins, but Senate goes Democrat, that nixes the confirmation. If Biden wins, regardless of Senate control, the nominee becomes Biden’s.

Fact:  The Senate faces a dilemma.  They can vote on Trump’s nominee now, putting future control of the Senate in jeopardy.  That would seat a conservative – changing judicial history – but might trigger court-packing if Biden won and Senate flipped.  Or Republicans could put off the vote, giving moderates a pass but risking post-election pressure.  Finally, they could allow moderates to vote “no,” yet squeak by with enough votes pre-election to gild the lily.

In the final analysis, peripheral facts play big.  If Trump’s pick is supremely qualified, and stands up well to scrutiny, one or two Democrats might flip, like conservative Joe Manchin of West Virginia or endangered Alabama Senator Doug Jones, who might pull a Sun-Tzu.

Another peripheral fact is wild polling.  If a moderate felt they could vote yes, they might accede to a pre-election vote. Of note too are the “dying words” of Ginsberg, who reportedly said she preferred a vote wait until the next president was seated.

Most ominously, Democrats threaten to pack the Court if Biden wins and they get the Senate. That prospect is interesting, sure to stir opposition.  It could hurt eventually Democrats, while fracturing the court, upending precedent, and undermining the legitimacy of decisions.

Two final facts about court-packing.  Franklin Delano Roosevelt tried, and it backfired.  He thought he could push six justices onto the Court, politicize it. The move almost cost him everything – domestic legislation, support for “lend lease,” reelection.  The idea burned him.

Finally, little mentioned, Ginsberg was strongly opposed to court packing.  In 2019, she was aware of the implications, said:  “Nine seems to be a good number, it’s been that way for a long time,” adding “I think it was a bad idea when Franklin Delano Roosevelt tried to pack the court.”

Pressed by National Public Radio, she got precise:  “If anything would make the court look partisan, it would be that – one side saying, ‘when we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’” No, that is a bad idea. See https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive.

So, if we are to take the Justice’s words into account, perhaps Democrats eager to tip the Court should reconsider FDR and Ginsburg – both of whom disfavored court-packing.  If court-packing is politically untenable, it goes away.  If court-packing fades, when should they vote?

In the end, President Trump’s nominee must be seated.  The debate around that nominee will froth, regardless of whether the vote is before or after.  The issue, and implications for abortion, Obamacare, immigration, national security, and a host of legal issues, is significant.

If Senate Republicans can explain their position, and afford to lose one or two votes, the issue should be resolved fast.  If fear of reelection dominates Senate Republicans, they might consider the prospect of lose-lose, win-lose, and win-win.  If they wait until after the election, they may lose high ground, critical time, Senate control, and the White House, causing momentum to fall back on them, gaining absolutely nothing – including no new seat.

If they vote pre-election, they should win, take the issue off the table, leave a legacy, add support to the base – even if moderate Senators must explain.  Net-net, this is a tough one, but action beats waiting – and if the election should by a harrowing mishap go to the Supreme Court, the composition will be … different.  Just a thought.

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Kim
Kim
3 years ago

Rest in peace, Justice Bader Ginsburg.

Difficult decision, indeed. Precedence leans in favor of waiting until after the election, but this also is a golden opportunity to help preserve our country as we know it. If the dems take majorities in Congress and the White House, it’s all over…

I’ll hold my nose and offer: if there’s nothing in the Constitution that contradicts the recommendation, then let’s “get while the gettin’s good”. If the other side of the aisle comprised reasonable, moderate democrats, I might feel differently. But they’re lunatics, sorry, and they should be stopped at every opportunity.

PaulE
PaulE
3 years ago

The reality is the Republican Senate must vote to confirm a Trump nominee to the SC BEFORE the end of the year, because there is no guarantee that the GOP will hold control of the Senate in the up-coming elections and there is a high degree of risk that the Democrats, through the mostly Democrat friendly courts, may be successful in stealing the WH. If either of those two items comes to pass, then adding a constitutionally conservative judge to the SC goes to zero.

Democrats have already repeated their desire to pack the SC will enough far left liberals to ensure that the conservative justices of the SC will be permanently neutralized. Nadler, Schumer and others in the Democrat party talk about adding at least 6 additional liberal justices to accomplish this task. That means the judicial branch of government will be permanently lost to the Democrats. Any lower court ruling in favor of the People or the GOP will be over-turned by the SC. A Democrat controlled Congress could pass virtually any normally unconstitutional law and the packed SC would just rubber stamp it as constitutional. Where this would all lead is obvious and the country would be lost.

So the Republican members of the Senate have to grow a spine and do what is right for the country, as opposed to being solely focused on their political careers, to ensure the SC can act as an effective firewall against either of the two scenarios I laid out in the first paragraph.

Just a thought.

Shoe
Shoe
3 years ago

The GOP needs to realize that the radical Dims will NEVER be fair in anything they do. We should not wait out of any sense of fairness. We need a full Court as there will be many legal challenges over the upcoming election. Those states mailing out ballots to “resident” will need to be challenged and we do not want a tied court (now that Roberts has turned liberal)

Thomas F. Olszewski
Thomas F. Olszewski
3 years ago

Cut the crap and put a nominee up. The demoncrats would love to screw this country even more. If they had the the chance sure as god made little green apples they would.

Alex Pilon
Alex Pilon
3 years ago

The Dems legislate through via the Supreme Court, so yes the Senate must vote to confirm this year! Otherwise America will continue to go down the Socialist path the the left is pushing

Morty Tupperman
Morty Tupperman
3 years ago

I’mm betting that the Republicans capitulate to the Democrats and wait until after the election. With very few exceptions, they are a pretty spineless group.

Enuf Said
Enuf Said
3 years ago

Outnumbered5-4— If you consider John Roberts a CONSERVATIVE– you are a brick short of a pile. Someone has SOMETHING on Roberts (as Maxe-Pad Waters said–Obozo has something on EVERYBODY). Oh, yes–he will throw out a crumb to conservatives on SMALL issues–BUT when it comes down to the real meat and potatoes– NOW–He WILL vote along with the other liberal judges. When Trump’s appointee is confirmed it will STILL only be 5-4.

Stephen Russell
Stephen Russell
3 years ago

Once named Vote or streamline debate to confirm use televideo sessions vs F2F to cut costs.
Speed up process,, done before

Enuf Said
Enuf Said
3 years ago

If the Democraps can hold a ridiculous, unfounded attempt at impeachment DURING an election year–THEN the Repugs can certainly nominate a SCOTUS candidate during an election year.

Fairfield54
Fairfield54
3 years ago

The Democrats of the Democrat National Criminals will never be okay with anything that President Trump does. President Obama was a lame duck – Trump is not. Nominate and have a vote. Get it over with. Stop the hand wringing and rip that bandage off! It is what is best for the country.

Phyllis Poole
Phyllis Poole
3 years ago

It’s appalling that our congress is so divided. Some don’t act like adults. They’re like school kids. They should all be on the same side of the basic laws. Our nation. Was founded “under God”. That’s what makes us unique to other nations! But the devil crept into some of their minds. Anytime a person thinks it’s ok to murder another human whether they have age on their side or not is straight from the devil and those people should not have been voted in to our congress.
Different parties are for kids. We should disban those and vote on who can keep our nations motto “under God” in place.
Marxism is not our motto but I’m afraid some who are as kids and not loyal to our country took it instead of “under God”
They should be voted OUT!!! And asked to leave our country!

Glenn Lego
Glenn Lego
3 years ago

Vote tomorrow and to heck with the Democrats!

R.J. from Arizona
R.J. from Arizona
3 years ago

Let’s say Trump wins. Socialists have said they are going to tie up the election with lawsuits. Its been publicly stated that SCOTUS could decide the outcome.
You want the Court to be 8 members or 9 if that decision must be made?

Josephine pooley
Josephine pooley
3 years ago

Well reasoned!

AmazedHuman
AmazedHuman
3 years ago

Why on earth should the Senate have a dilemma as to when or whether to vote to fill the Supreme Court vacancy? It’s the President’s right and duty to nominate someone and it’s their right and duty to help him fill that seat ASAP. We NEED the full Supreme Court in place and anyone standing in the way of that has an agenda – that isn’t in the best interest of America.

Wayne Peterkin
Wayne Peterkin
3 years ago

The bottom line is that constitutionally, federal courts do NOT have the authority to create or change laws. That responsibility belongs solely to the legislature even though Ginsberg disagreed. Therefore, activist judges are exceeding their constitutionally limited powers and should never be nominated or confirmed to the bench. President Trump is still president. He has maintained a list of candidates and should nominate a solid constitutionalist as Ginsberg’s replacement. Ginsberg herself back in 2016 said that Obama had that power to replace Scalia during an election year even though Obama was a lame duck, and she was right, even though the Senate refused to confirm Garland which was their right. I hope Trump nominates a good replacement for a badly flawed Ginsberg and that the Senate confirms that pick prior to January. This is not a conservative/liberal issue. It’s a constitutional issue about respecting laws as written and intended. Fail to do that as activists do and the law really means nothing at all because it can change at the whim of an court. The law must be set on bedrock, not shifting sand.

T K
T K
3 years ago

There is NO dilemma. Following the constitution & history dictates an appointment to the Supreme Court. Add to that, the Dems have said repeatedly this election will be decided in the court. This means all the more reason to not have a vacant seat. This is not difficult. It’s only difficult for those wanting the seat left vacant for nefarious reasons.

cindy Hatcher
cindy Hatcher
3 years ago

They are hoping for a Democratic Congress to veto all conservatives

Art A
Art A
3 years ago

A brilliant individual from West Virginia once told me that “There is no fair way to lose.” Nominate,discuss,VOTE FOR CONFORMATION ASAP. Don’t lose the high ground. If you are a Senator that feels that your position is in such jeopardy that you may not be reelected,maybe your are not performing very well for your constituents. If this vote is your last, make it count for the future. Take one for the team. MAGA/KAF/KAG 2020.

Lynn Miller
Lynn Miller
3 years ago

America is in an insurgency, and faces in this current era, all out social warfare. The Democrats are not attempting to merely bring a Sweden style socialism to the United States. The end goal for Democrats is what was begun in the 1950s that McCarthy paid a high price for identifying: Communism. Republicans MUST VOTE AND SEAT a Constitutional cleric to the SCOTUS NOW… or the nation will face the ultimate loss of its Constitutional governance. No Delay, The Senate MUST act NOW.

James
James
3 years ago

Don’t wait! Select a nominee for SCOTUS and deliver to the senate for approval! This is the constitutional authority of the president and senate! Unlike the phony unethical and illegal impeachment, this is a legal requirement of the president! Don’t submit to the bullies of the democrat party! Get it done!

Phil Hammersley
Phil Hammersley
3 years ago

All DIMMs on national level are THUGS. If you think otherwise, name one who has condemned the rioters BY ORGANIZATION! Condolences to Ginsberg’s family BUT she did not revere or honor our Constitution. She recommended the South African constitution to a newly-formed country–ridiculous. She performed a “gay” wedding while the Court had a case under review. She should have recused herself.
Nominate and vote on a constitutionalist ASAP. Ignore the paid-for charges from the snakes on the left. No more BS like they did to Kavanaugh !

Tina
Tina
3 years ago

As I understand it, Cory Gardner is up against the beloved “moderate Democrat” ex-governor for two terms John Hickenlooper. If Gardner stands any chance of keeping his seat his choice is crystal clear.

Donald Warner
Donald Warner
3 years ago

This is probably the most naive statement you’ll see here. But, I’ll say it anyway. Shouldn’t justice be blind?? Not liberal or conservative. Why can’t these supposedly educated people put party politics aside and base their judgements on law and the constitution?

Richard Hennessy
Richard Hennessy
3 years ago

If the least reliable Republican Senators, Collins and Murkowski, are so RINO that they won’t vote to confirm a qualified constitutionalist appointee to the Supreme Court, their positions aren’t worth protecting. If they can’t explain a favorable vote to their voters, they will lose regardless. We should not forget that these two are so lacking in usefulness that they voted with Democrats to PRESERVE OBAMACARE.

Garye
Garye
3 years ago

Not a dilemma at all, nominate and confirm a conservative to the Supreme Court, the heck with the useless democrats,We the people elected a Republican Senate majority for exactly this reason.
DO YOUR JOB!

Donna Minten
Donna Minten
3 years ago

I Believe his will be a great way for the Senate to retain it’s majority! The Silent Majority will take notice and vote favorably!! The Senate need to VOTE the WILL of We the People that put them in office!!

Mytake
Mytake
3 years ago

Interesting! I think the President should “just do it”. Better for our country.

GKP
GKP
3 years ago

The Trumpster should nominate his choice of judge for the SUPREME COURT today if possible and then have the Senate vote on it tomorrow if possible and then see what liberal senators from the REPUBLICAN PARTY choose not to vote on the selection. If they balk in any way my hope is the people of that state throw them out on their ass.Also with 50 votes the Vice President Pence can cast the deciding vote/THE TIME IS RIGHT NOW.

carol
carol
3 years ago

This position needs to be filled by Constitutional standards. What does the Constitution say? We the citizens of this country want a government that cares more about the country than themselves. If they are doing their jobs Constitutionally then they need to stop worrying about elections. Democrats need to STOP threatening this country just cuz they can’t always get their way! STOP acting like children and do what they all swore to do – ABIDE BY THE CONSTITUTION!

Michael Venaccio
Michael Venaccio
3 years ago

Good morning everyone..

One thing I do not see, unless I missed it, is that the stated intention of the Democrats is to contest the election results, otherwise why would they already have 600+ attorneys ready to go.

The election will most likely wind up in the Supreme Court so, unless you want domestic and constitutional crisis brought on by a possible 4-4 tie, you need the ninth justice to break any tie.

This is a legitimate reason for the nomination, hearing and confirmation vote. It is needed to protect the election process.

Terrence Anthony
Terrence Anthony
3 years ago

Out of respect of Justice Ginsburg, and her total commitment being a member of the Supreme Court, allow family and friends to mourn her passing. After that it is full speed ahead.
How sad the Republican Senators are not as committed to their party as the Democrats are.

Bruce
Bruce
3 years ago

A couple of other issues wrap into this…

If Trump makes his nomination today or tomorrow and Graham sets Judicial Committee hearings soon after (FBI background check should not take long as it was recently done on Barrett and Lagoa), which he’s now said he’ll do promptly, this may pull The Kamala out of campaigning to her spot on the Judicial Committee.

If no appointment by Nov 20, the 8 Justice Supreme Court will be hearing arguments on the constitutionality of the Affordable Care Act which currently has been repealed by the 5th Circuit. A tie in the SC will allow the 5th Circuit’s findings to stand.

Nancy Sypolt
Nancy Sypolt
3 years ago

Never in my life time have I heard of such blatant
Nonsense! All the democrats think about is power and control! The Republicans have to stand up to them! It’s now or never! Please, Republicans, support the President! We maybe on the brink of civil war if the dems screw up the vote in November. We need the Supreme Court seat filled to resolve any issues. Not to mention the killing of how many more innocent babies!!!!! As The people chanted in N.C. FILL THAT SEAT!!!
Do it now!!!!’

David DiFabio
David DiFabio
3 years ago

Ted Cruz and all the heads on the left will explode

Chris
Chris
3 years ago

The article left out one very important consideration. Given Chief Justice Robert’s inconsistencies, if the election were contested in court (likely) and if it get to the SC (likely), the court could split 4-4. The whole election could run on that vacant SC seat.

Philip Jarinko
Philip Jarinko
3 years ago

Definitely do the replacement NOW! After all, the dems had no problem when FDR was President, they merely added two more positions to the court to get their way! Also Social Security as created by FDR and fellow corrupt friends (not enough set aside in taxes and no “lock box fed account”) was nothing more than a Ponsey(sp?)) scheme to defraud the not so educated and gullible for their votes. FDR even admitted it in back room discussions by saying, “When the public finally realizes it, we will be long gone and then there is nothing they can do to us”. Oh, as far as precedence is concerned, it is not a law. Precedence is only brought up by the dems as a way to convince the NOT SO EDUCATED and GULLIBLE, in order to fraudulently force their way.

John A. Fallon
John A. Fallon
3 years ago

I am sick and tired of these moron politicians DEMANDING that “WE THE PEOPLE” do what they want because it is “good”for thier party, that is not what they were elected to do, they were elected to SERVE the people because they are “CIVIL SERVANTS” they exist to serve US THE PEOPLE, there is nothing in thier job description that says they should serve only people that agree with thier political view and ignore the MAJORITY OF “THE PEOPLE. RED, KAG, VOTE TRUMP AND REPUBLICAN, VOTE FOR LAW AND ORDER!!

Tony Bo
Tony Bo
3 years ago

After a speech given by Justice Ruth B. Ginsburg later in 2016, an attendee asked her if the Constitution prevented the President from filling the seat. Ginsburg’s response was:
“As you know, the President has the authority to name appointees to the Supreme Court, but he has to do so with the advice and consent of the Senate.
…The President is elected for four years, not three years, so the powers that he has in year three continue into year four, and maybe some members of the Senate will wake up and appreciate that that’s how it should be.”

M. Beaumont
M. Beaumont
3 years ago

There is nothing blocking the president from putting up a nominee to SCOTUS. Since Republicans hold both the White House and control in the Senateit would be foolish and stupid to not proceed. As for the RINOs who want to wait all that is needed are 48 votes to confirm since the Dems can only muster 47.

Jerry Todd
Jerry Todd
3 years ago

We’ll need a SCOTUS majority knowing the malfeasance, sedition and treason the Dems have already spread out. Iliam Omar just published a new book in which she she states she’s going to use all the power of her religion, sex, etc. to burn this place down.

Ardyne
Ardyne
3 years ago

The President has the right to appoint a new judge anytime He feels like and the Senate and only the Senate has the right to act on it. Do not give into the lefts attempt to say otherwise.

David Campbell
David Campbell
3 years ago

Precedent is quoted (and promptly skewed by the left). Unfortiunately, we live in unprecedented times. The Dem’s have become a “win by any means necessary” party and intend to permenently rule and will no longer tolerate the status quo gentlemen’s agreement to share power with Republicans. This is an existential fight and one party is going to lose. Then Dem’s know this and the Rep’s don’t. This is the problem. The Republican’s don’t know that they are in a fight for their very survival. If the Dem’s win this fall, it’s all over, and any nomination or even confirmation won’t matter. The Dem’s will pack the court and do whatever is necessary to win the court(s) back to their side and destroy the Constitution. So you can’t worry about what the Dem’s will do if we do this or that. It doesn’t matter. We must win. Besides, this is going to be a hotly contested election likely to have numerous rulings from the high court. Having a bunch of 4-4 decisions would be disasterous for the country.

If you hate The United States of America, vote for Democrats.

aluminum head
aluminum head
3 years ago

Glad she is expired and get that vacancy filled NOW ! ! ! !

charliearlie
charliearlie
3 years ago

Get it started! Why in the world would the Republicans do ANYTHING that the Dimwits are demanding? STOP BEING SO NICE!

Bill
Bill
3 years ago

POTUS Trump has never had a majority in the Senate, with at least three RHINO’S since McCain is gone. So where is his advantage? Plus the fact that Roberts has turned way left.

John A. Fallon
John A. Fallon
3 years ago

Where did the socialist/dems get the idea they can make ALL the rules? they are bound by the same rules as everybody else, they cannot change the laws to fit thier sicko ideolagy, they are civil servants, nothing more, they are in fact total failures as politicians and as human beings as such they are long over due for replacement, too long in the swamp and they have lost touch with reality. RED, KAG, SUPPORT LAW AND ORDER, TRUMP2020

Al Lane
Al Lane
3 years ago

It is imperative that a conservative judge be seated at all cost. This is more important than any Republican politicians career since the seated justice will be there for life which would impact critical decisions for a long time. Protecting the Constitutional Rights such as the First and Second Amendments is paramount to secure our rights for the future and without them we will all be at the mercy of the radical left. The court can hold the line against a Democratic majority in the Senate but only if we have a conservative majority in the Supreme Court.

Bill Brown
Bill Brown
3 years ago

American History: Every time a SCOTUS vacancy has occurred in an election year and the Presidency and the Senate are held by the same party, the vacancy was filled that year!  Bullies are crybabies.  The Crybaby DemoCommies are trying to bully all of America to get their own way!!  Push back against the bullies!! Join the Trump Movement – The American Revolution Version 2!!!  Become a Counter-Revolutionary!!!  Stand-up for Our Republic!!!!  Remove Every DemocRat!!!!!

Bill Brown
Bill Brown
3 years ago

The National Education Association and the American Federation of Teachers are COMMUNIST organizations that are teaching OUR Children Anti-American sedition!  Members of those UNIONS should NOT be allowed to Teach!!  Join the Trump Movement – The American Revolution Version 2!!!  Become a Counter-Revolutionary!!!  Stand-up for Our Republic!!!!  Remove Every DemocRat!!!!!

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