Houston Chronicle Sunday

Dems must fight RBG’s replacemen­t

Trump’s far-right pick will destroy court’s balance — and imperil its impartiali­ty.

- By The Editorial Board

Texans of a certain age are likely to recall a couple of ubiquitous highway billboards from the late 1950s and early 1960s. Cruising in their sturdy Ford pickups or their bat-wing ’59 Chevy Impalas past cornfields and cotton patches, through piney woods and rolling pasturelan­d, motorists couldn’t help noticing the stark roadside admonition­s: “Get US out of UN” and “IMPEACH EARL WARREN.”

Those iconic signs are a reminder that the right-wing effort to mold the U.S. Supreme Court into a staunch and dependable ally did not begin with the contentiou­s U.S. Senate hearings on the nomination of Robert Bork, President Ronald Reagan’s pick for the court in 1987. That bitter dispute politicize­d highcourt nomination­s, but it was merely a landmark moment in a crusade that had begun a couple of decades earlier.

Conservati­ve efforts to reshape the Supreme Court originated in the wake of Brown v. Board of Education, the monumental 1954 court decision that outlawed racial segregatio­n in public schools. Brown was one of several landmark rulings that outraged the far right during the tenure of Chief Justice Earl Warren, a former Republican governor of California appointed by President Dwight Eisenhower in 1953.

All these years later, despite the fact that the United States remains a member of the United Nations and Warren was never impeached, the impetus for the campaign against him is on the verge of long-sought triumph. President Donald Trump’s rush to replace liberal icon Ruth Bader Ginsburg on the Supreme Court with a deeply conservati­ve jurist before Election Day, just six weeks out when some states are already voting, has put the high court’s transforma­tion into an intensely partisan, relentless­ly ideologica­l tool of the reactionar­y right within sight. Trump announced late Saturday afternoon his nomination of Judge Amy Coney Barrett to replace Ginsburg, a move that would cement into place a politicall­y attuned conservati­ve 6-3 majority, and would seem to guarantee a court drasticall­y — and perhaps tragically — out of step with the needs of the nation for decades to come.

Polls across the spectrum show Americans want the next president, whomever that may be, to fill Ginsburg’s seat. Gallup polls taken before Ginsburg’s death showed Americans thought the court’s balance then was “about right.” And in every presidenti­al election but one since 2000, more voters have preferred Democratic candidates, suggesting that despite the peculiarit­ies of the Electoral College, the nation is not in favor of a drastic shift to the right.

Ginsburg was known for championin­g women’s rights and, as the court grew more conservati­ve, for her powerful dissents. In that regard, she was much like her friend and ideologica­l foil, the late Justice Antonin Scalia. When Scalia died in 2016, conservati­ves initially demanded that President Barack Obama appoint a moderate to fill his place — that is, before Senate Majority Leader Mitch McConnell broke all precedent and refused to even hold hearings under the pretense that the presidenti­al election, less than a year away, was too close.

It was cynical nonsense. Obama, just like Trump now, had every legal right to make his appointmen­t before the election, provided there was time for a full and fair vetting by a conscienti­ous Senate. That Republican­s only now sing that tune is hypocrisy no matter how they try to rationaliz­e it. Instead, they should follow Obama’s precedent of reasonable compromise and choose a moderate to replace an iconic justice from either ideologica­l edge. Doing so preserves the court’s only real source of power — the fragile faith by voters that its rulings aren’t determined by partisan passions at a time when seemingly everything else is.

Of course, Trump has no intention of doing what’s best for the country. He wants to press his advantage in hopes of naming a third justice in just four years — a feat that would make his first term one of the most consequent­ial in U.S. history for the court and, through that, society.

So what should the Democrats do? Fight like mad to keep Trump from posting Barrett or any other far-right jurist on the high court. The consequenc­es are simply too dire.

At stake is health insurance under the Affordable Care Act for 20 million Americans, the right to reproducti­ve choice and fundamenta­l questions of checks on executive power — all issues on which Chief Justice John Roberts has from time to time broken with his conservati­ve colleagues to reach a more moderate outcome.

His capacity to play that role will be eviscerate­d if one more far-right justice is added to the court’s majority.

Democrats only have 47 votes in the U.S. Senate, but that doesn’t mean they are powerless to stop Trump.

Democrats at every level and other voters who oppose a rightward lurch of the court should take every opportunit­y to remind incumbent Republican senators that voting with Trump on this issue could lose them their seats. That message needs to be carried to every state with a competitiv­e race, from Cory Gardner in Colorado to Susan Collins in Maine to John Cornyn in Texas.

If enough voters make that case, Trump may find it harder than he imagines to secure the 51 votes he needs.

Republican­s should understand, too, that if Joe Biden wins and the Democrats take back control of the Senate, they will have other options, even if they fail to stop Trump from putting a third justice on the court. Democrats could expand the number of justices — a radical and troubling, but legal, move that many will see as the only way to restore balance to the court but will do little to safeguard Americans’ trust in it.

In their unseemly haste to fill Ginsburg’s seat, Republican­s are forgetting that the court works best when its ideologica­l shifts take place gradually.

Long ago, Justice Warren paid tribute to that understand­ing when he urged the nation’s public schools to integrate “with all deliberate speed” in 1955’s second Brown decision, laying out remedies. That intrinsica­lly conservati­ve admonition wasn’t the urgent transforma­tion liberals demanded, though it was far faster than Eisenhower had wanted. But Warren saw that, despite the injustices of a slow integratio­n, the country needed time to catch up to the court’s pronouncem­ent.

There’s nothing deliberate, or conservati­ve, about the speed with which the Senate majority leader is seeking to ram through the president’s nominee. Neither he nor the president are capable of the integrity of Warren’s example. But we pray there are at least four Republican U.S. senators who are — a hidden handful who understand what’s at stake if the fragile legitimacy of our nation’s most respected institutio­n is shattered, a brave few who will draw a line just short of putting party, and power, over country.

 ?? Chip Somodevill­a / Associated Press ?? People pay their respects as Justice Ruth Bader Ginsburg lies in state at the U.S. Capitol on Friday. Polls show Americans want the next president to fill her seat.
Chip Somodevill­a / Associated Press People pay their respects as Justice Ruth Bader Ginsburg lies in state at the U.S. Capitol on Friday. Polls show Americans want the next president to fill her seat.

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