Despite Threats of Riot and Mayhem, Nomination of Ginsburg’s Replacement Should Proceed

Supreme Court Justice Ruth Bader Ginsburg smiles during a photo session with photographers at the U.S. Supreme Court in Washington on March 3, 2006. (Mark Wilson/Getty Images)

Commentary

Everything is much louder now, isn’t it?

With the death of Justice Ruth Bader Ginsburg on Sept. 18, conservatives observed a moment of respectful circumspection, but the left instantly reached for its high-octane stuff and went to town.

A bunch of the excitable ones descended on the Senate majority leader’s house on Sept. 19 to dance about and shout after learning that he intended—horror of horrors—to discharge his duty and bring the president’s SCOTUS nominee, whoever that turns out to be, to the Senate for scrutiny and a vote.

The contrast between how conservatives responded to Ginsburg’s death and how the left responded to the death of Judge Antonin Scalia is notable.

President Donald Trump began his remarks at his Sept. 19 rally in Fayetteville, North Carolina, with some words of praise—“she was an inspiration to a tremendous number of people”—and condolences for her family.

When Scalia died in 2016, the left erupted like an angry boil, smearing a puss of calumny and vituperation across the blighted landscape of social media.

Ginsburg, apart from her identity as the second female Supreme Court justice, was known chiefly for two things: her reliably progressive jurisprudence and her collegiality.

I won’t say anything about the former because it is already well known. Anything having to do with the distaff side got her worked up. She delighted in forcing formerly male bastions to admit or prefer or promote women and to support or pay for their chosen precautions against maternity.

Ginsburg’s collegiality went far beyond her storied friendship with Scalia, her ideological antonym but a gentleman in bearing as she was a lady. There was a certain amount of shtick to the relationship, I believe, but the affection was by all accounts genuine.

But Ginsburg’s politesse didn’t end with Scalia. Of particular note was the public courtesy she extended to Neil Gorsuch and, especially, to Brett Kavanaugh after they were mocked and—especially in the case of Kavanaugh—viciously attacked and slandered by the party of peace and love (unless you are a conservative or an embryo of any affiliation).

I will come back to Ginsburg’s collegiality in a moment. First, I want to say a word or two about the strange situation her death has, if not precipitated, exactly, then at least highlighted.

Authority to Nominate

As many commentators have pointed out, Trump has the authority (some, like me, would say “the obligation”) to nominate Ginsburg’s replacement for the Supreme Court. It is one of the important things that a president does: nominate people to the Supreme Court, when there is a vacancy, with the “advice and consent” of the Senate.

As Andrew McCarthy put it, “President Trump has the power to make nominations until at least noon on January 20, and maybe for another four years after that.”

I quoted that last bit just to stir up the gallery.

Does anyone—anyone—think that a Democratic president, were he (or, doubtless, she) similarly situated with a Senate majority, forbear to move heaven and earth to get his person nominated and confirmed on the run-up to a presidential election?

To ask the question is to answer it.

Please don’t utter the name “Merrick Garland,” the moderate liberal whom President Barack Obama nominated to the Supreme Court in 2016 on the run-up to that year’s presidential election. The lying media is pretending that there is a valid analogy between Obama’s nomination of Garland and Trump’s nomination of whomever-it-turns-out-be now.

“The shadow of Merrick Garland hangs over the next Supreme Court fight” intones one organ of the gutter press.

No, it doesn’t. Why? Because although the Democrats occupied the White House in 2016, the Republicans held the Senate. It was, as Joe Biden once put it, a “divided government,” and in such situations—Biden was speaking in 1992, not 2016—“action on a Supreme Court nomination must be put off until after the election campaign is over.”

This time, however, we have a unified government—a president and a Senate of the same party—and it should be business as usual to nominate a new candidate for the Supreme Court whenever a vacancy occurs, right up to “noon on January 20,” as McCarthy put it.

I don’t know enough of the backstories and my political chess skills aren’t sufficiently sharp to say whether the president will nominate someone right away. He said he would, this coming week, and Sen. Mitch McConnell said he would move it along.

Many knowledgeable people on my side of the aisle think this won’t happen, or at least that it shouldn’t happen, because 1. it will decrease Trump’s chances of winning and 2. it will endanger some vulnerable Republican senators.

As I say, I don’t know enough about that complex game to offer an opinion, though I will say that should Trump nominate some excellent conservative—Amy Coney Barrett, for example, who is on the short list—I would suggest that she (and Trump has promised a she) would do as much to energize Republican support all along the ticket as to inflame the opposition.

The Mob’s Choice

Except that when today’s Democrats get inflamed, they do so literally. Indeed, one of the strangest things about this entire election season—a season that now includes a Supreme Court nomination—is the quanta of threatened violence it involves.

Don’t elect Trump or else we’ll continue to riot and we’ll litigate the election results forever. Don’t nominate a replacement for Ginsburg or we’ll burn down Congress.

I’m not sure that we really appreciate the bizarre nature of these threats, and the political situation they represent. Elect who we say or else we will riot and burn down your cities. Don’t nominate someone we dislike to the Supreme Court, or else we will burn down Congress.

How should we react to such threats? I think we should face them down, with extreme prejudice. The mob—even when it has the support of Hollywood and the gutter press—doesn’t, and shouldn’t be seen to, pick the president. Nor does it have the prerogative to pick justices for the Supreme Court. Any suggestion that it does should be met with instant and definitive rebuke.

Which brings me back to the subject of Ginsburg and collegiality. News of her death had barely entered cyberspace before NPR reported that her dying wish, dictated to her granddaughter, was that her position not be filled by Trump. “My most fervent wish,” she is supposed to have said, “is that I will not be replaced until a new president is installed.”

Yes, that hint of dubiety is deliberate. I have no evidence that Ginsburg did not dictate those words to her granddaughter, only doubts.

Of these two things, however, I am certain. If she did express that wish and wanted it to be public, then she delivered a heavy blow against the ideal of collegiality she espoused throughout her career. For such a wish, expressed at such a time, cannot but further poison the well of our public life and fan the flames—literally—of public unrest. Can you think of anything less collegial?

My other certitude is this: Such a wish, assuming it was expressed, has absolutely no claim on those making the decision about when Ginsburg’s replacement should be nominated. That is up to the president of the United States. Until at least noon on Jan. 20, 2021, and perhaps until Jan. 20, 2025, that person is Donald J. Trump, duly elected according to the rules prescribed by the Constitution of the United States of America.

I think he should get on with it and that McConnell should shepherd his choice through the Senate with all appropriate dispatch.

Roger Kimball is the editor and publisher of The New Criterion and publisher of Encounter Books. His most recent book is “The Fortunes of Permanence: Culture and Anarchy in an Age of Amnesia.”

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.