Chaos lurks af­ter death of Bader Gins­burg

El Dorado News-Times - - Viewpoint - GUEST COL­UMN — Yank­ton Press and Dakotan, Sept. 21

The death of Supreme Court Jus­tice Ruth Bader Gins­burg is a pro­found loss to the ju­di­cial con­science of this na­tion.

But in our mourn­ing, there is no es­cap­ing the po­lit­i­cal firestorm that has erupted with her pass­ing — as if this elec­tion year needed even more flammable fuel.

Within two hours af­ter the news of Gins­burg’s death broke, Se­nate Ma­jor­ity Leader Mitch McCon­nell de­clared that the Se­nate would pro­ceed with all due speed on con­firm­ing the nom­i­nee put forth by Pres­i­dent Don­ald Trump. This con­tra­dicts what mem­o­rably hap­pened in 2016 when Jus­tice An­tonin Scalia died that win­ter and Pres­i­dent Barack Obama put forth a nom­i­nee but McCon­nell re­fused to even con­sider the nom­i­na­tion on the grounds that, it be­ing an elec­tion year, the next pres­i­dent should make that de­ci­sion. So, in 2016, a Demo­cratic pres­i­dent’s nom­i­nee was stonewalle­d for 10 months be­cause it was an elec­tion year, but in 2020, just six weeks be­fore the elec­tion, a Repub­li­can pres­i­dent’s nom­i­nee will ap­par­ently pro­ceed full steam ahead.

South Dakota Sen. John Thune has em­braced McCon­nell’s ap­proach. “As Leader McCon­nell said, Pres­i­dent Trump’s Supreme Court nom­i­nee will re­ceive a vote on the floor of the U.S. Se­nate.” This in con­trast to what Thune said of Obama’s abil­ity to nom­i­nate a jus­tice in March 2016: “Since the next pres­i­den­tial elec­tion is un­der­way, the next pres­i­dent should make this life­time ap­point­ment to the Supreme Court.”

Of course, this is 1) naked hypocrisy, and 2) ut­terly un­sur­pris­ing. In this po­lit­i­cal cli­mate, no one can pre­tend oth­er­wise.

One ra­tio­nal­iza­tion for this flip-flop is the ar­gu­ment that the Democrats would do the same thing if given the chance. That may well be true, for it is a po­lit­i­cally ir­re­sistible temp­ta­tion. But that sup­po­si­tion also func­tions as self-ful­fill­ing proph­esy, for Democrats would now likely do just that in re­sponse to this. And here lurks chaos. Trump may in­deed send a nom­i­na­tion to the Se­nate and could get a vote prior to the elec­tion — al­though, at this writ­ing, that isn’t a sure thing as a few Repub­li­can sen­a­tors are mulling whether to ad­here to the 2016 prece­dent. In this sce­nario, it could put an even more pro­nounced right­ward tilt to the court that may last a gen­er­a­tion (al­though, given the turnover we’ve seen lately, maybe 5-10 years at best).

How­ever, should the Repub­li­cans pro­ceed with this but Joe Bi­den then wins the pres­i­dency and Democrats take the Se­nate — which is a real pos­si­bil­ity — the Democrats could opt to scrap the fil­i­buster rule and ex­pand the Supreme Court by two or four or six (or more) jus­tices, a ma­neu­ver that would not fall un­der con­sti­tu­tional con­straints.

Thus, we may be on the precipice of “slip­pery slope” ter­ri­tory with this sit­u­a­tion. (As an aside, an ex­pan­sion of the Supreme Court has in­trigu­ing ar­gu­ments for it both ways, but that’s an­other de­bate for an­other time.)

At this point, it’s hard to see who stands down in this po­lit­i­cal con­fronta­tion. It’s also dif­fi­cult to see how one ac­tion on one side (other than enough Repub­li­cans re­fus­ing to move with this un­til af­ter the elec­tion) can dif­fuse the other and bring a sense of or­der to this ex­tra­or­di­nary mo­ment in our his­tory.

This is high drama in real time, and it may re­main so for quite some time.

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