The topic of discussion for this Constitution Monday is the subject that is on many minds and tongues since Friday. Associate Justice Ruth Bader Ginsburg died on Friday at the age of 87 from complications of pancreatic cancer. She was appointed to the Supreme Court in 1993 by President Bill Clinton for 27 years of service. She “was known for her soft-spoken demeanor that masked an analytical mind, a deep concern for the rights of every American and a commitment to upholding the Constitution.”
The death of Justice Ginsburg means that a new justice must be appointed to take her place. The debate surrounds the timing of the new appointment. Article II Section 2 Clause 2 of the Constitution of the United States says: “… He [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court….” In this clause – known as the Appointments Clause – the Constitution empowers the President to nominate and the Senate to confirm (advice and consent) to appoint justices to the Supreme Court. The Appointments Clause does not say anything about timing for the President to nominate or the Senate to confirm. It simply outlines their responsibilities to do so.
The confirmation hearings for Associate Justice Brett Kavanaugh were wild as Democrats sought to keep him from being confirmed. I expect that the confirmation for the next justice will be even more ferocious. Democrats have been encouraging and/or participating in violence for the past four years since Donald Trump won the 2016 presidential election. They have pulled dirty tricks out of their bag one right after another with hopes of getting Trump out of office.
Democrats want the seat to remain open until after the 2020 election. Of course, they do! However, they would not leave the seat open if they had control of the White House and the Senate! They – and some Republicans – are loudly calling hypocrisy for Senate Leader Mitch McConnell’s pledge to vote on a nominee when Trump sends a name to them. However, he did not allow the Senate to vote on a nomination made by President Barack Obama in the months leading up to the 2016 presidential election.
Here is the reason that McConnell will be following a different path this time: In 2016, the White House was held by a Democrat, and the Senate was held by Republicans. There was absolutely no reason why a Republican-controlled Senate should confirm a liberal justice. In 2020, both the White House and the Senate are controlled by Republicans. Republicans have the power and the opportunity to confirm a conservative, constitutional justice to the Supreme Court, and they should move forward in fulfilling their duty to do so. The circumstances are different, but the Constitution and history say that Trump can nominate, and the Senate can confirm a new justice to replace Justice Ginsburg.
There is no legal reason why either Trump or the Senate should hesitate to perform their constitutional duty to replace Justice Ginsburg. However, the Democrats and their far-left supporters will make everyone miserable during the process. I suggest that you buckle your seat beat and hold onto your hat because it is going to be a wild ride!