Associate Justice Ruth Bader Ginsberg passed away last week at the age of 87 from cancer. She is receiving much praise for her life’s work. Ginsberg was the second woman to serve on the U.S. Supreme Court, being appointed by President Bill Clinton and taking her seat in 1993. The first woman to serve on the Court was Sandra Day O’Connor, starting in 1981.
Among the many praises of Ginsberg’s life and work was this one from New York Governor Andrew Cuomo: “Justice Ruth Bader Ginsburg selflessly pursued truth and justice in a world of division, giving voice to the voiceless and uplifting those who were pushed aside by forces of hate and indifference,” he said. Cuomo said that New York will erect a statue honoring the legacy of Justice Ginsberg in her native Brooklyn.
Her passing resulted in much sadness and regret, and it has also brought forth a hot political issue: How and when to fill her seat on the Court?
Democrats say President Donald Trump must not nominate anyone. They are horrified at the prospect of the President doing so this close to the election.
Some Republicans also think an appointment should wait until after the election. However, with millions more mass-mailed ballots in this election, the results may not be known for several days, a few weeks or even months. With this possibility, we need a full, nine-member Supreme Court to address potential issues.
Many people have expressed their opinions about this situation. One of them is Mark Levin, attorney, author and chairman of Landmark Legal Foundation, who had this to say: “I can think of no president who has chosen not to nominate a candidate to the Supreme Court when a vacancy occurs, regardless of when that vacancy occurs. Whether the Senate confirms or not is a wholly separate issue. But for a Republican president not to try to fill a vacancy with a Republican Senate (despite some weakness among certain senators) is irrational. The Democrats have not and would never do such a thing.”
What PJ Media reported may also carry some weight: “When a similar scenario occurred four years ago, following the death of Antonin Scalia, the Republican-controlled Senate blocked Barack Obama’s nomination of Merrick Garland to the Supreme Court. It was a controversial move, and Ginsburg had something to say about it.”
“That’s their job,” Ginsberg said in July, 2016. “There’s nothing in the Constitution that says the President stops being President in his last year.” And, a few months later she said, “Eight is not a good number for a collegial body that sometimes disagrees.” Justice Sonia Sotomayor, who was with her at the time, agreed: “I think we hope there will be nine as quickly as possible.”
“The Republican position on filling vacancies arising during a presidential election year has been consistent and follows historical norms,” wrote judicialnetwork.com. The record is as follows:
* “When the same party controls the White House and the Senate (e.g., now), the confirmation process proceeds as usual and the nominee is almost always confirmed. A new justice has been confirmed 8 out of 10 times this has happened.”
* “When different parties control the White House and the Senate (e.g., in 2016) the confirmation process either does not proceed or proceeds and the nomination usually fails. In the handful of instances when such nominations proceeded (excluding one case in which there was a recess appointment), they failed 4 out of 6 times.”
Some accuse the Republicans of trying to rush the process. However, other confirmations have been completed in a short time frame.
“According to Senate records,” The Federalist reports, “Justices Ginsburg, John Paul Stevens, and Sandra Day O’Connor were all confirmed in a short period of time. Stevens’s confirmation in 1975 took 19 days, O’Connor’s confirmation in 1981 took 33 days, and Ginsburg’s confirmation in 1993 took 42 days.”
Sen. Lindsey Graham, R-Ga., offered additional information. “The two biggest changes regarding the Senate and judicial confirmations that have occurred in the last decade have come from Democrats. Harry Reid changed the rules to allow a simple majority vote for Circuit Court nominees, dealing out the minority. Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open.”
And, each side has produced comments from members of the other side that contradict their current positions. Fox News “Media Buzz” host Howard Kurtz noted that politicians do exhibit “flexibility” from time to time.
However, there are activist justices on federal courts, including the late Justice Ginsburg, who insert their personal or political beliefs into their work. They view the Constitution as a “living” document, the meaning of which changes with the winds of cultural evolution or personal preference, instead of applying the Constitution’s original meaning. That destroys a stable judicial system. Justices and judges must apply the law, not make law.
If removing President Donald Trump from office was a legitimate effort to protect the country, then stabilizing the judicial system with judges who honor the Constitution and laws as they are written, and not as they wish they were written, certainly is, also.