Supreme Court Justice Ruth Bader Ginsburg died last Friday. Appointed to the Supreme Court in 1993 by President Bill Clinton, Ginsburg was a reliably liberal vote on the bench. Over time she became something of a folk hero to the left. The 2019 film, On the Basis of Sex, chronicled her early life and crusade for women’s rights. In the age of Trump many Democrats wore T-shirts of Ginsburg’s likeness with the moniker, ‘The Notorious RBG’. Thousands gathered on the steps of the Supreme Court to mourn Ginsburg the night she died. Hours after the announcement of Ginsburg’s death, Republican Senate Majority Leader Mitch McConnell said the senate would hold a vote on the president’s nominee to replace her before the election on November 3rd.
So begins the last great battle in the Supreme Court nomination wars that have raged since the 1980s.
The Democrats began the Confirmation Wars in 1987 when President Ronald Reagan nominated Judge Robert Bork to the Supreme Court. Led by Senator Ted Kennedy, Democrats smeared Bork as a dangerous extremist who would undo progress in Civil and Women’s rights. When President George H.W. Bush nominated Clarence Thomas to the Court in 1991, Democrats accused him of being a serial sexual harasser. Thomas, a southern born African American, called the hearings a ‘high tech lynching’. There followed decades of fighting over lower court nominees. During the George W. Bush administration Democrats blocked many of the president’s judicial picks. In 2005 Republicans tried to eliminate the judicial filibuster (whereby 60 votes are needed to advance a nominee to the senate floor for an up or down vote) but struck a last-minute deal with the Democrats to keep it. In 2013 Democrat Senate Majority Leader Harry Reid eliminated the judicial filibuster for all but Supreme Court nominees. When President Obama nominated Merrick Garland to replace arch-conservative Antonin Scalia in 2016, Mitch McConnell blocked him, saying it was too close to the election to fill the vacancy. McConnell called this the ‘Biden Rule’ as then Senator Biden made the same argument about Robert Bork in 1987. McConnell eliminated the filibuster for Supreme Court nominees when the Democrats used it to block Neil Gorsuch, whom President Trump nominated to the court. When President Trump nominated Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy in 2018, the Democrats claimed he was part of some bizarre satanic rape cult; in high school. Kavanaugh was eventually confirmed, but Democrat antics left the GOP embittered and seeking revenge.
This week the Democrats are calling McConnell a hypocrite for blocking Merrick Garland in an election year but trying to advance President Trump’s nominee mere weeks before an election. The Democrats are right. In 2016 McConnell and the GOP said the senate was under no obligation to confirm or even give a hearing to a nominee from the other party. Now McConnell claims it’s ok to confirm a Supreme Court nominee in an election year because the senate and the White House are held by the GOP. This is of course blatant power politics.
It is unlikely that McConnell would have guaranteed a vote for whomever Trump nominates without already knowing he has the votes to confirm. As of this writing McConnell has fifty-one senate votes. Assuming the caucus holds, there is little Democrat Senate Minority Leader Chuck Schumer can do to stop him. The Dems are claiming Ginsburg’s dying wish was that another president appoint her successor. Other than that, all Democrats can do is threaten the GOP. And threatened they have.
Enraged that Trump would try to fill the seat during an election year, many Democrats are calling for retaliation. Massachusetts Senator Ed Markey decried McConnell’s actions, ‘Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster [for all other legislation] and expand the Supreme Court.' Congresswoman Alexandria Ocasio-Cortes is calling for Democrats to fight, ‘Let this moment radicalize you,’ she declared. Many grief-stricken liberal columnists and TV personalities vowed to take to the streets. ‘If they even TRY to replace RBG we burn the entire f***ing thing down,’ tweeted author and former CNN host Reza Aslan. Current CNN host Don Lemon said, ‘We’re going to have to blow up the entire system. You know what we’re going to have to do? You’re going to have to get rid of the electoral college.’ Already protestors have shown up at Mitch McConnell’s home in Louisville Kentucky. The nation should expect more of the same.
Harry Reid eliminated the filibuster for lower court nominees assuming that the Democrats would maintain control of the senate and win the White House in 2016. Justice Ginsburg almost certainly believed Hillary Clinton would be the next president and wanted the first woman president to name her replacement. The Democrats didn’t understand that in smearing Judge Kavanaugh they’d radicalize senate Republicans and leave them wanting revenge, not just for Kavanaugh but decades of Democrat obstructionism. Because of a series of miscalculations, the Democrats face the very real prospect of a court with six conservative votes. President Trump is expected to nominate someone very soon.