[If one intends to review this post, but has not yet read Part I (which is immediately below), I would start there ;)]
Upon hearing of Supreme Court Justice Ruth Bader Ginsburg’s passing and my estimation that it was likely that Republicans would immediately move to fill her seat, I feared that given progressives’ capacity for uncontrolled outrage, exacerbated by Republicans’ inexcusable refusal to act on President Obama’s nomination of Judge Garland four years ago, progressives wouldn’t be able to contain themselves. In a random sampling of liberal outlets over the weekend, there appeared wall-to-wall liberal apoplexy about Republicans’ filling Justice Ginsburg’s seat. I would suggest that such frenzy is counterproductive. Bob Woodward reports in his book, Rage, that Presidential Advisor and Trump son-in-law Jared Kushner’s “… core understanding of communication strategy … is, ‘Controversy elevates [Trump’s] message.’” If – while it remains to be seen how big an “if” it is — Senate Republicans suffer no more than three defections in seeking to confirm Mr. Trump’s nominee, they hold the winning Senate procedural hand. For progressives to expend undue emotional reserves on a contest that they’re likely to lose at the expense of a contest that they can win – the presidential election – is at best a political gamble and at worst, detrimental to their strategic electoral designs.
That said, there is a distinction between luxuriating in incendiary rhetoric and outwardly temperate expression (even if seething inwardly) of distress and concern with the impact another conservative Supreme Court Justice might have on American rights, and with the blatantly partisan nature of the Republicans’ maneuvers. The Democrats’ target audience, persuadable swing voters, could be alienated if they make hyper-partisan declarations, but may well be amenable to reasoned arguments and indignation. While Republicans will attempt to make the fight about abortion, I would offer that Democrats’ best approach will be the line that some have already adopted: how another conservative Trump appointee might adversely impact the now widely-popular Affordable Care Act, with dispassionate commentary on the contrast between the Republicans’ refusal to proceed with Judge Garland’s nomination and their rush to judgement on the Trump nominee. Then, get back to the Coronavirus. They should follow the wise advice of Samuel L. Jackson’s character, Jules Winnfield, near the end of the film, Pulp Fiction: Be cool. I’m somewhat reassured that at least Democratic presidential nominee and former Vice President Joe Biden apparently understands this; reports indicate that he said nary a word about the Supreme Court during a recent trip to Wisconsin.
Recent accounts indicate that the Trump Campaign is calling upon Mr. Biden to identify whom he would nominate to the Supreme Court if elected, and that Mr. Biden is rebuffing such calls. Here, I think he is missing a golden opportunity. He should declare that he will re-nominate Judge Garland. I submit that such a declaration would be brilliant politically. Progressives will grumble, but faced with the prospect of another Trump term and Trump Supreme Court nominees, will ultimately stay in line behind Mr. Biden; Mr. Garland will have the aura of having been previously nominated by Mr. Obama, providing Mr. Biden cover with his constituencies preferring a nominee of color; Mr. Biden’s naming of Judge Garland, a moderate, would destroy Mr. Trump’s argument that Mr. Biden is a tool of the “alt-left”; and Mr. Biden’s selection of Mr. Garland would seem fitting to swing state swing voters offended by Republicans’ unfair treatment of him. I believe that if Mr. Biden would name Judge Garland, he “wins” the Supreme Court debate with persuadable voters no matter what the Republicans do with a Trump nomination.
While political prognostication is engaging, Justice Ginsburg’s passing and the potential fallout has left me with a couple of more fundamental impressions. The first – perhaps to the surprise of those who are aware of my obsessed keyboard frothing about Sen. Mitch McConnell’s contemptible, despicable, execrable dereliction of duty in refusing to proceed with the Senate confirmation process for Judge Garland – is that President Trump should put forth a nominee, and if, after appropriately-paced and illuminative confirmation hearings, the nominee is found to be judicially qualified and without other objective “disqualifying” factors such as drug addiction (not subjective legal views), the nominee should be confirmed. Article II, Section 2 of the Constitution provides: “[The President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme [sic] Court.” Four years ago, I wrote U.S. IA Sen. Charles Grassley, then the Chairman of the Senate Judiciary Committee: “I see nowhere in the [Constitution] any language limiting the President’s powers of nomination and appointment to the first three years of his/her term.” Mr. Trump is the President. He is within his term. He has not just the “Power” but the duty to put forth a Supreme Court nominee. As the late U.S. AZ Sen. John McCain once urged in another context: Let’s return to regular order. To me that needs to apply whether or not one finds “regular order” convenient. As abhorrent as I find Messrs. Trump and McConnell, there is no value to enshrining the notion that a President cannot perform a vital Constitutional function a quarter of the time. As our mothers taught us: Two wrongs don’t make a right.
We were with good friends [at a socially-distanced outside gathering ;)] when word came of Justice Ginsburg’s death. All felt a deep sadness both for the passing of a great American and for what it might mean for our country. My thoughts initially drifted to the likely political ramifications of Ms. Ginsburg’s passing, but as I contemplated the fire, I considered that no issue so divides our people as does abortion — which Supreme Court nominations have come to symbolize in the public mind — and that Justice Ginsburg’s passing, coming right when it did – neither early enough in Mr. Trump’s term that progressives would ultimately emotionally reconcile themselves to another conservative Supreme Court Justice, nor after Mr. Biden’s inauguration (if such occurs), when conservatives would emotionally accept that Ms. Ginsburg would be replaced by another liberal – could violently deepen the cultural chasms already existing between us; that the impending Supreme Court nomination and confirmation process has the potential to further rip and salt our deepest wound. It is easy to presume that as her condition reached its final stages, Justice Ginsburg explored with her physicians whether there was any way to keep her medically alive through January 20. There obviously wasn’t. Russian President Vladimir Putin couldn’t have drawn it up any better.
Notwithstanding Mr. Biden’s apparently encouraging lead in the polls, as we enter what I consider the most dangerous months for the future of our democracy since the defeat of Nazi Germany, it is difficult not to have concerns; we seem beset on so many sides. Yet, I find solace in Proverbs 3:5: “Trust in the Lord with all your heart, on your own intelligence rely not .…”
May we hold ourselves together.