I thought Ruth Bader Ginsburg would die of drowning.
Those familiar with Robert K. Massie’s description of the death of Rasputin in Nicholas and Alexandra or with the multi-step demises of certain tragic figures in Celtic mythology may get the idea. She seemed almost indestructible.
It’s hard not to admire some aspects of her life. Working at age 87 – let’s start with that. Then there’s her refusal to surrender to various death-dealing ailments. We all die of something. But Ruth Bader Ginsburg never gave in. The most anti-life of Supreme Court justices was pro-life when it came to herself. That’s something. Our respect for life begins with respect for our own.
The best way to honor her is to take the best parts of her character and emulate them. Ginsburg fought hard for what she believed in. Some have called her more of a political activist than a judge, for her willingness to shelve statute, constitution, and common law when it came to her vision of the right outcome. But no matter what side you take on those issues – and they were more issues for her than cases – we can all agree she was not overburdened by the niceties of common practice.
That’s the sort of can-do spirit that ought to guide the selection of her replacement.
Article II, Section 2 of the United States Constitution empowers the president of the United States to “nominate … Judges of the supreme court.” It says that’s supposed to happen “by and with the Advice and Consent of the Senate.”
It doesn’t say how.
Until 1925, no nominees for the court appeared for a hearing before the Senate’s Judiciary Committee, or any other committee. The Senate voted on nominations up or down without ever hearing from the nominee.
There’s no reason we can’t return to that way of doing things.
Judiciary Committee hearings have been just about useless for 33 years. Ever since Robert Bork took a header in 1987 after describing to senators his ideas about the law, judicial nominees have batted away most substantive questions about their beliefs by claiming they can’t answer them because it might make them seem prejudiced if a case along those lines came before them. So we learn almost nothing about how they would rule or even about how they would approach cases.
The only memorable things that have come out of Judiciary Committee hearings in recent times have been lies. Revelations about Clarence Thomas and Brett Kavanaugh, for instance, were false. They were publicized by scorched-earth Democrats who had little interest in truth.
So let’s end the travesty.
The Senate makes its own rules. The majority makes those rules. The Republicans hold that majority. So the Republicans senators can make new rules.
Now they can dispense with the need for a hearing on a federal Supreme Court nominee.
President Donald Trump ought to nominate a candidate for the Supreme Court in short order. Hypothetically, let’s call her Amy Coney Barrett. An FBI investigation can be commissioned to make sure she has never been paid by a Chinese government lab and never gang raped any of her high school acquaintances. That should take about 10 days.
Then proceed right to the vote.
If the votes aren’t there, then don’t have the vote. Wait ‘til you do. Perhaps President Trump’s re-election in November may have unsuspected coattails, in the form of a net pickup of a seat or two in the Senate. Or maybe it’ll stiffen the spine of some of the current members.
But perhaps waiting that long won’t be necessary. Getting the votes now might not be as hard as many suspect. Republicans in tough re-election campaigns might be reminded of the benefits of ginning up the base shortly before an election. For some, it might be their only shot.
The magic number is 50. The Republicans have 53. Let’s assume that Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Ego-Land aren’t on board. If everyone else is, then have the vote. Vice President Mike Pence can break the 50-50 tie. Trump’s nominee can be on the bench before the American League Championship Series gets under way.
Yes, certain Republicans have made tortuous statements during the past few years about how and when the Senate should or shouldn’t hold an up-or-down-vote on a president’s nominee, since McConnell in 2016 blocked consideration of President Barack Obama’s nominee to replace Antonin Scalia. So be it. The fact is: This is an exercise in power. The federal constitution says who has the power, and who doesn’t.
President Trump is the only Republican president in recent times who has seen Supreme Court nominations not as a burden but as an opportunity – indeed, in some ways the point of electing a president. Whatever power and political capital he has accumulated as president are for these moments, not for some other moment. This is a chance to do what he came for.
Perhaps the same floor vote can confirm the next U.S. ambassador to St. Vincent and the Grenadines.
Congratulations, John Roberts. I recommend SPF-70.
