September 18, 2020

Will Trump and the GOP Senate get a new Justice confirmed before the election?

My first thought was that they won't even try. They'll use the open seat as a political issue — an argument why it is so important to reelect Trump and to keep a GOP majority in the Senate. And the backup plan can be that if Trump loses, they can accomplish the appointment after the election, before the new Senate and President are sworn in. So what if they said something else before the election?!

But then — in discussion here at Meadhouse — the thought came up that this election could be contested. There's so much talk about election fraud and mail-in voting, that there could be Bush v. Gore type litigation arising in various states, and the outcome of the election could well depend on that. Right now, the Supreme Court has only 8 Justices, and though there are presently 5 conservatives and only 3 liberals, a 4-4 tie is possible, with one vote switch, and Trump might want his person on the Court to lock in a conservative majority.

ADDED: The strongest argument for Trump to go right ahead and immediately nominate someone is that President Obama made a nomination in the election year of 2016 when Antonin Scalia died. Obama's nominee was not confirmed, but that was because the GOP controlled the Senate. There was nothing about Obama's lack of support in the Senate that made him more willing to put forward a nomination in an election year. He made the nomination in spite of the lack of support. Why should Trump refrain when he has Senate support?

AND: "McConnell says Senate will move to confirm Ginsburg replacement" (WaPo).
“President Trump’s nominee will receive a vote on the floor of the United States Senate," McConnell said in a statement hours after the court announced Ginsburg’s death.
Also at that link: "More than 90 minutes after news of Ginsburg’s death broke, President Trump — speaking at a campaign rally in Bemidji, Minn. — seemingly remained unaware of the news.
While closing out the rally, however, Trump alluded to the importance of the Supreme Court’s direction in the upcoming election. 'We will nominate judges and justices who interpret the Constitution as written,' Trump told the crowd, to cheers and shouts. He told his supporters that the next president 'will have anywhere from one to four' vacancies on the Supreme Court to fill. 'Think of that,' Trump said, warning that conservatives would be 'stuck' for decades with a Supreme Court they did not like if the Democrats won in the fall."

And (same link): "Days before she died, Ginsburg told her granddaughter that she felt strongly that her Supreme Court seat not be filled until after the presidential election, according to NPR. 'My most fervent wish is that I will not be replaced until a new president is installed,' she dictated in a statement to her granddaughter, Clara Spera."

Joe Biden ought to come right out and say who he will nominate if he is elected.

187 comments:

David Begley said...

Trump is a man of action. He’ll send up a name within two weeks.

I expect Dem riots all over the country. Trump knows that and that’s part of the reason he will act.

Big Mike said...

My first thought was that they won't even try.

My first thought as well, and I see the same pitfalls as you wrote in your second paragraph.

Michael K said...

No, they won't try but it will be an issue. Steve Bannon has a good interview on Tucker about it. If you can find it.

Here it is.

Drago said...

"Right now, the Supreme Court has only 8 Justices, and though there are presently 5 conservatives and only 3 liberals, a 4-4 tie is possible, with one vote switch, and Trump might want his person on the Court to lock in a conservative majority."

There are only 4 conservatives.

There is zero chance Roberts would cast any vote, even if and probably especially if the Trump campaign has the law on its side, that affirms a Trump win.

Zero. Absolute zero.

Roberts wouldn't even allow Trump to use an executive order to get rid of an unconstitutional executive order issued by obama.

As if the "its a tax!" example didn't prove what Roberts is all about all by itself.

David Begley said...

What’s the rule on Jewish funerals? I know very fast.

pacwest said...

Murkoski no. Romney no. Collins? Plus a slew of Senators whose election chances would be hurt. I don't see how McConnell gets to 50. How confident is Trump that he can win and hold the Senate? What a clusterfuck. You picked a fine to leave Ruth.

Milo Minderbinder said...

Romney and Murkowski likely will abstain, and Graham would prefer not to try and chair chaos. Methinks Trump will decide he’d prefer the issue.

D.D. Driver said...
This comment has been removed by the author.
DougWeber said...

It is an interesting tactical choice:
1. Nominate and confirm: lots of screaming, could excite the Dem base with anger. But also removes the issue from the election. See 2
2. Wait until after the selection: Dems will rile up the bse to come out so that Biden can choose the new justice. Could also be used to energize the Rep base.

Not sure which is best. Will be interesting to see.

Chuck said...
This comment has been removed by a blog administrator.
Browndog said...

"Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration.... The president made a nomination in all twenty-nine cases."

-NRO

Diogenes of Sinope said...

If this situation were reversed what would Chuck Schumer do?

Schumer would get a liberal justice confirmed.

Tom said...

I think he has to make an appointment right now and the Senate just have to get it done before the election.

Drago said...

I should add a very important caveat: Senator Burr is fully and completely owned by Sen Warner.

And I mean completely.

Whatever backroom deal Warner cut with Burr to give Burr a nice sinecure in retirement will be put at risk when Warner threatens Burr with loss of that cash.

We already know Romney and Murkowski will walk..so the democraticals only need 1 more FakeCon Rino to walk and then someone like Burr has a very, very, powerful little chip to play to get more cash out his democrat allies.

Rubio won't go over to the dems.....although you know he is just dying to.

Mr Wibble said...

I think Trump wants the fight of a pre-election confirmation. The Dems can't help themselves: they'll go crazy. Imagine the sight of Dem senators trying to destroy Amy Coney Barrett for being a Catholic, a mother to seven, pro-life, etc. Imagine the news stories about rioting and crazed protesters outside the Capitol. That will do a lot of turn off potential middle-of-the-road voters from supporting the Dems.

Lucien said...

Of course President Trump will play to win by nominating a Justice and pressing for confirmation. What if he wins the election and the Democrats take the Senate — or get 50 plus Romney?

Browndog said...

“President Trump’s nominee will receive a vote on the floor of the United States Senate,” Senator McConnell says in statement regarding Justice Ginsburg’s replacement.

I guess everyone can stop hand wringing.

RBE said...

I think Trump has an obligation to nominate someone and the process can move forward or not.

Gahrie said...

There are only about seven weeks left before the election, it would be really tough to get a justice confirmed that fast. If they did, there would be enormous pressure for the new justice to recuse themselves from any case involving the election.

FullMoon said...
This comment has been removed by the author.
Drago said...

The democraticals and their LLR-lefty lap poodles have nothing to complain about.

RBG has been extremely ill for years and years and she was told to quit about a thousand times while obama was President but she refused and insisted upon rolling the dice and that roll came up snake eyes.

I'm Full of Soup said...

Yesterday the PA Supreme Court decreed ballots received 3 days after Election Day mist be counted. And no postmark by Election Day is required. In effect, it just re-wrote the state election law. Judges like Ginsburg would have approved this non-constitutional act by the court.

DavidUW said...

Her evil lives on and whatever little good there was is interred with her bones.

Yancey Ward said...

It definitely will not occur before the election- at least not the confirmation hearings and confirmation itself. Trump may well announce the replacement at some point in the next 3 weeks, but the Senate won't act until after the election.

As for whether or not the Senate will act- I can just about guarantee it. McConnell won't sit on his hands after November 3rd. The likeliest scenarios are these:

(1) Trump loses and Democrats take the Senate;
(2) Trump wins and Democrats take the Senate;
(3) Trump wins and the Republicans hang onto the Senate but with a reduced majority or zero or one vote.

In all three scenarios, it makes sense for the Republicans to replace Ginsburg before January. The Democrats have already told you what they will do if they sweep the election- they will pack the court and get rid of the filibuster to do it- it pays to believe them when they say this. Not replacing Ginsburg won't stop the Democrats from packing the court, though I am sure that is the argument that LLR Mitt Romney will try to sell to his colleagues.

The only scenario where it makes sense to not act until after the inauguration is where Trump wins in a landslide and enlarges the Senate majority for the Republicans, but I think that is very unlikely to happen given the seats being contested this cycle in the Senate.

I'm Full of Soup said...

Mr. Wibble has the best take at 7:52pm.

Wince said...

Trump should make the nomination.

Start the process in the Senate.

Let the left throw an ugly fit against the nominee.

Whether or not the nominee is confirmed, the ugliness in the Senate and in the streets should help in re-electing Trump.

Yancey Ward said...

Chuck accidentally highlights why Trump won the Republican nomination by pointing out that Murkowski and Romney have already indicated they won't approve any pick between now and January. The Democrats are going to pack the court if they win the election- count on it. The only question is going to be if the Republicans want to choose one of the new justices that will be chosen next year- this might be the only opportunity to do it, and Romney and Murkowski are just ceding the ground to the Democrats like the spineless cretins they have always been.

Drago said...

McConnell has already issued a statement that Trump's nominee will get a vote on the Senate floor.

Leland said...

No. The RINGS aren't even waiting for her burial to stick it to Trump. I suspect by Monday, we will know the third person on the Biden Harris ticket

Leland said...

RINOs

Yancey Ward said...

The only thing McConnell needs to decide is this- what would the Democrats do in the exact same situation? Of course, the Democrats would name a nominee the day after the funeral and schedule the hearings ASAP. The Democrats would get it done by the end of this month.

Howard said...

It's so 2020

Drago said...

LLR-lefty Chuck is very very excited about the prospects of a democrat marxist getting appointed as the next SC justice.....

....isn't he?

You know, like all "principled conservatives"......

Kevin said...

Trump should nominate Nancy Pelosi just to watch her party oppose her.

“Wait,” she’d cry, “I’m one if you,” as the Molotov cocktails rained down on her SF mansion.

Drago said...

MCConnells rapid statement about a Senate floor vote means he long ago counted noses by scenario and is already good to go.

Some wags are making note that Murkowski makes alot of these noises before being given about a zillion goodies for Alaska.

And Murkowski is up for reelection in 2022...a vote against a republican nominee would just about doom her.

Drago said...

You know what LLR-lefty Chuck is really worried about?

It took every bit of Chuck's energy and Moby "skillz" to pretend to support Kavanaugh and he knows he wont be able to come close to pretending to be a conservative in the coming fight.

Laslo Spatula said...

Pierre Delecto is ready for his close-up.

I am Laslo.

Ken B said...

Candace Owens. Let them vote down a black woman!

Readering said...

Even a contested election allows existing senators to vote on nominee, who will be selected pre-election. Although I read new AZ senator can take seat before December, so there's that.

Hammond X. Gritzkofe said...

Memo to D.R.T. and M.McM.: Git 'er done!

Drago said...

Hey, democraticals and LLR-lefty morons, what if Trump nominates an hispanic woman they have just approved overwhelmingly to the 11th Circuit?

How would that change the electoral calculus?

Ken B said...

I keep hoping for Thapar. Let the dems attack a colored son of immigrants.

Readering said...

Drago I agree with you there. She did not want her legacy to be a successor appointed by Trump, but if it turns out that way she will have had herself to be blamed.

Readering said...

Drago I agree with you there. She did not want her legacy to be a successor appointed by Trump, but if it turns out that way she will have had herself to be blamed.

MikeD said...

JFC, President Trump has a list of potential nominees, let him announce who'll be the nominee post election. Challenge the Harris, oops, I meant Biden, campaign to announce their nominee. It's an election, tho' I'm certain lib/progs will try to steal! Shud the President listen to the ideological idiots masquerading as Conservatives (this is the hill I'll die on) the donk/media firestorm will transcend any dumpster fire ever existent. If you think differently, you're dumber than a sack of rocks. I know as I finally passed the granite IQ test!

exhelodrvr1 said...

Losing a vote would also help Trump because of the way the demoswould handle themselves in the process

Mark said...

Of course, if Roe had not utterly destroyed the Court and the country, this would not be that big of an issue.

Ray said...

McConnell should horse trade the nomination before the election for no mail-in balloting, late ballot counting

John Althouse Cohen said...

Why should Trump refrain when he has Senate support?

Because Trump already got to nominate one Supreme Court Justice who died almost a year before Trump became president. Trump can't cherry-pick the parts of Obama's principle that he likes in order to choose 3 Justices when he shouldn't chosen only 2.

The number of Democrats or Republicans in the Senate is irrelevant to whether the president should nominate a Supreme Court Justice (though obviously it affects how likely the person is to be confirmed).

Readering said...

If Biden wins and Dems take Senate there will be some hard conversations among Senate leadership about future of legislative filibuster in context of size of USSC.

Mark said...

I wish that Janice Rogers Brown had been up for the fight.

Now she's retirement age and it's too late.

William said...

If Trump should succeed in getting his choice passed and accepted, the Dems would use that as an excuse to pack the Court at their earliest opportunity. I can see a lot of things going wrong. Trump should announce his appointment and ask Biden to do the same. Let their choices be part of the election process.....Ginsburg led a worthy and successful life, but there was nothing becoming about the way she chose to leave the stage. Supreme Court Justices should not allow the inevitable workings of nature to trigger constitutional crises....Souter doesn't have a lot of fans in these parts, but he was exemplary in the way he chose to step down. Perhaps future justices will look to Souter and not to Ginsburg for guidance in this matter.

clint said...

Yep. Mr. Wibble is right. President Trump will make a nomination. (And increase the pressure on Biden to say who he would appoint, should the vacancy remain for him to fill.)

Unclear what the Senate will do -- whether they confirm quickly or after the election, will depend on how they think it affects the close senate races.

tastid212 said...

The Republicans would be fools NOT to nominate and try to confirm before the election (so are the odds against it?) Practically speaking, the Dems would delay and throw up every procedural obstacle they could (and the media would support them).

Agree with @DougWeber at 7:29 that a quick nomination and confirmation would take the issue off the table.

@Mr Wibble at 7:52 is right that Dems would revulse 54% of the country by going full Kavanaugh on Amy Coney Barrett, another female nominee, or a POC nominee. Bases fired up; swing voters reminded of what Dem governance looks like.

Would Kamala Harris recuse herself? No way.

Ken B said...

Now's our chance folks! Althouse write-in campaign.

Greg The Class Traitor said...

My first thought was that they won't even try. They'll use the open seat as a political issue — an argument why it is so important to reelect Trump and to keep a GOP majority in the Senate. And the backup plan can be that if Trump loses, they can accomplish the appointment after the election, before the new Senate and President are sworn in. So what if they said something else before the election?!


Nope.
1: If Biden wins and the Democrats take the Senate, they will appoint 2 - 4 more people to the Court, especially if the GOP were to appoint and confirm after losing the election

2: McConnell's statement put it well:
A: Voters put Trump in office in 2016 to appoint new SC members
B: Voters voted in 2018 to give teh GOP more Senate seats, to get Trump's nominees in
C: Therefore Trump & GOP Senate have every legitimate right to appoint and confirm a new Justice

After sign the election, they would lose that moral high ground

3: There was a real possibility that "Chief Justice" Roberts would have ruled with the Dems when they were playing vote counting games.

However, he's not going to side with the 3 Dems and make it a bunch of 5 -4 votes. So expect all anti-Dem ballot game votes to be 6-3, as Roberts tries to "uphold the dignity of the Court".

4: I also expect that Roberts will give himself every one of those decisions to write

Readering said...

It appears Collins in record for waiting if Biden elected but not Romney.

Wince said...

"Joe Biden ought to come right out and say who he will nominate if he is elected."

Merrick Garland will get the short-end of the stick, again.

This time from Biden.

No vagina.

Michael K said...

Mr Wibble said...
I think Trump wants the fight of a pre-election confirmation. The Dems can't help themselves: they'll go crazy. Imagine the sight of Dem senators trying to destroy Amy Coney Barrett for being a Catholic, a mother to seven, pro-life, etc. Imagine the news stories about rioting and crazed protesters outside the Capitol. That will do a lot of turn off potential middle-of-the-road voters from supporting the Dems.


This is the best argument for going ahead. Will she tolerate it ?

Michael K said...

The number of Democrats or Republicans in the Senate is irrelevant to whether the president should nominate a Supreme Court Justice (though obviously it affects how likely the person is to be confirmed).

The left having been heard from......

Greg The Class Traitor said...

Gahrie said...
There are only about seven weeks left before the election, it would be really tough to get a justice confirmed that fast. If they did, there would be enormous pressure for the new justice to recuse themselves from any case involving the election.

1: Trump nominates ACB on Monday
2: She was confirmed less than 3 years ago. There's not a lot of new Senators for her to meet. She meets them, next week, hearings start the following week.
3: Then the Dems go absolutely ape-shit, and establish WHY no one should vote for them.

4: No hyperbole: If Republican Senators try to stop her from getting approved, esp ones from Republican States like Alaska & Utah, I expect said senators will get assassinated. After Antifa murdering a Trump supporter in Portland, I dont' think the base is going to be willing to tolerate any garbage on this front.

So while I think there will be some grandstanding, I expect she will get approved before the election.

Rockport Conservative said...

I suspect Trump knew this was coming. He revealed a list of people he would nominate recently. I hope he does, that it is done promptly and it is not too contentious. My reasoning is, it might temper the left slightly as it will not then be all about the judge to replace RBG, it is already done.
She was not of my political persuasion, but I have to admire what she accomplished in her life and the endurance she had in fighting multiple cancers.

I'm Not Sure said...

'We will nominate judges and justices who interpret the Constitution as written,' Trump told the crowd

Now, how can you can argue with that?

Yancey Ward said...

And you can see Readering giving out the narrative that will be used to talk the Republicans out of it:

"If Biden wins and Dems take Senate there will be some hard conversations among Senate leadership about future of legislative filibuster in context of size of USSC"

Court packing will happen regardless of what the Republicans do with Ginsburg replacement. The Democrats have already told us they will do this if they win, and I believe them. This is just a replay of the "nuclear option" for approving lower court appointments. Republicans were talked out of using the nuclear option during the first two years of Bush II's second term, and sure enough, the Democrats used it the first time they had to during Obama's time in office. And when it came time to approve Gorsuch, the media and the Democrats went right back to the previous line and tried to talk the Republicans out of using the nuclear option for SCOTUS oppointments. Fortunately, McConnell had learned his lesson and didn't yet have to deal with Mitt Romney for that or the Kavanaugh confirmation.

I think McConnell will try to confirm the replacement, but only after the election, but it might be far better to do it before. He is going to get heat no matter what he does, so it is better to just get it done ASAP.

I'm Full of Soup said...

JAC: Trump nominated someone who was already dead?

Yancey Ward said...
This comment has been removed by the author.
PB said...

Without her, it's 5-3 Republicans, or 4 1/2 to 3 1/2 considering squishy Roberts. start pumping out those 5-3 decisions!

Greg The Class Traitor said...

Yancey Ward said...
It definitely will not occur before the election- at least not the confirmation hearings and confirmation itself. Trump may well announce the replacement at some point in the next 3 weeks, but the Senate won't act until after the election.

Wow, Yancey, you're usually very good, but this time you're totally off

1: With a new member on the Court before the election, all Democrat games will lose 6-3. Without one, any that are approved at the appeals court level will make it through the SC 4-4

2: If Biden wins, the Democrats take the Senate, and then teh GOP approves a Ginsburg replacement, that would be the moral equivalent of the Democrats filibustering Gorsuch in 2017: Something that forces all Democrat Senators to get on board, this time with packing the Court. There would be at least two, and probably 4 seats added within 6 months. 100% chance

3: If ACB gets appointed before the election, and Biden wins and Dems take the Senate, then there's still probably a 60% chance that the Democrats pack the Court. But they will have a lot less moral legitimacy then, and if it's a 50-50 Senate all it takes is 1 defector.

Trump, GOP House, GOP Senate, and GOP Statewide candidates are all more likely to win with 5 solid members on teh Court to keep Roberts pointed in the right direction.
Approving after the election is hideously problematic
Democrats will act insane during hearings, pushing voters away from them

ACB will get a vote before Nov 3

clint said...

"Joe Biden ought to come right out and say who he will nominate if he is elected."

He still can't. Just like ten days ago he couldn't put out a list of potential nominees to match Trump's list.

rehajm said...

Murkowski didn't say she wouldn't vote after the election but before January when the new Senate convenes. There's time for that...

Bill, Republic of Texas said...

'My most fervent wish is that I will not be replaced until a new president is installed,'

Interesting choice of words. Why a new president when one of the candidates is an incumbent? Why"installed" and not elected?

I see she is a bitter partisan to the very end.

Laslo Spatula said...

Pierre Delecto is bleaching his asshole in anticipation.

You cannot allow yourself to be unprepared for moments like these.

I am Laslo.

Bill, Republic of Texas said...

Mark and I disagree about the outcome of this political theater. I don't believe the Republican squishes will allow Trump to replace Ginsburg before the election.

We'll see who is right. The wager will be the loser gives the winner an "attaboy!"

Temujin said...

The media and Democrats will HOWL in a manner not seen since Allen Ginsberg. There will be Senators harrumphing. CongressCritters decrying. News readers caterwauling. But Trump should proceed. He is the President through January 22. This is his job. It is not to wait until the opposition feels they're in a better position. The Left will have the entire media with them, as well as most of the Never Trump Republicans. It is time for Trump to take care of business, while he has the Senate.

Plus- if they do not do it now, it will energize an otherwise non-excited Democrat base going into the election. However if they did nominate and get someone put through before the election, it would neuter the excitement of the Democrat base. It would take the fight out of them.

But they won't do it. They'll play along, even though it will guarantee a Liberal replacement for this opening.

The Genius Savant said...

If she really did say this (and I'm skeptical - her daughter is a far-Left activist not above using her mother's death for "The Cause") then this is an extraordinarily dangerous statement.

First, Presidents are not "installed", they are "elected".

Second, by stating "new" she is more than implying that a reelected Trump cannot nominate her replacement.

Greg The Class Traitor said...

John Althouse Cohen said...
>>Why should Trump refrain when he has Senate support?
>Because Trump already got to nominate one Supreme Court Justice who died almost a year before Trump became president. Trump can't cherry-pick the parts of Obama's principle that he likes in order to choose 3 Justices when he shouldn't chosen only 2.

You're so cute

1: It was Biden and Kennedy in 1986 who nuked the "any qualified nominee gets confirmed by the Senate", with Bork
2: It was the Biden rule that the Senate Democrats in 1992 would not give a hearing to a Bush Nominee if one happened
3: It was the Schumer rule that that the Senate Democrats in 2008 would not give a hearing to a Bush Nominee if one happened
4: In 2014 the People of America voted in a GOP Senate to put a check on Obama's nominees. So they did so
5: In 2016 the GOP Senate took #1, 2, & 3 and applied them to President Obama (who, while he was in the Senate, voted to filibuster Alito's Supreme Court nomination), and refused to give a vote to teh candidate that President Obama nominated well after the Biden rule / Schumer rule time period

6: In 2018 the voters gave the Senate more GOP Senators than it had before. So, after watching the Kavanaugh confirmation hearings, the voters said "we want Trump nominees to go through easier."

7: It's 2020, a Supreme Court member who should ahve retired years ago has died. We have a GOP President voted into office so he could nominate new SC members, we have a GOP Senate that was given a larger margin after the Democrats fought to block Kavanaugh from getting on the Court

They would be derelict in their duty if they didn't get the 9th member on the Court in time to deal with election decisions

Ken B said...

Jeremy Kaufman wins the Internet
“ It's not a big deal if Trump doesn't nominate anyone for the Supreme Court since 4 + 4 = 9”

Drago said...

readering: "If Biden wins and Dems take Senate there will be some hard conversations among Senate leadership about future of legislative filibuster in context of size of USSC."

LOLOLOLOLOLOLOLOLOL

The dems have ALREADY said they are giving Puerto Rico and DC statehood and will increase the size of the SC to whatever number is necessary to put it out of reach.

Just as the democraticals were the first to bust the filibuster threshold on judges.....and then went Full Resistance with their obstruction and lies against Kavanaugh.

An exercise readering was all too happy to participate in and to this day still smears Kavanaugh with hoax rape accusations.

NorthOfTheOneOhOne said...

Trump will nominate and the Dems may just have to lump it and confirm. Do we really want to go into an election that might end up like 2000 with only 8 justices and have them end up in a tie?

I don't think anyone in their right mind would want that!

Drago said...

JAC: "Because Trump already got to nominate one Supreme Court Justice who died almost a year before Trump became president. Trump can't cherry-pick the parts of Obama's principle that he likes in order to choose 3 Justices when he shouldn't chosen only 2."

You. Are. Out. Of. Your. Mind.

Hilarious.

Scott said...

Given the ability of the Dems to delay matters (they will bleat about a 'rush to judgement', etc.), I would be shocked if it was even possible to vote on a nominee before the election. The 30-odd senators up for reelection don't want to spend precious campaign time sitting through hearings, after all...

But, this is a wonderful tactical opportunity for Trump. Nominate someone and THEN challenge Biden to offer HIS preferred choice. If he chooses someone, then he will be attacked for the choice (no choice is perfect, and whatever choice Biden would make would have to satisfy so much of the hard left as to be unacceptable to the general voting population). If Biden declines (as he certainly would) he looks weak and vacillating. Worse still (for him, anyway) even if Biden says nothing, the various coalition members in the Democratic party will tear each other apart trying to get THEIR preferred nominee through the door. Watching blacks vs women vs socialists vs etc. (note: that etc. caucus is really nasty!) should be amusing, and Biden cannot resolve the argument without pissing some of them off.

rehajm said...

Ruth Bader Ginsburg’s formal Supreme Court nomination was sent to the Senate on June 22, 1993. Her confirmation hearing began on July 20, and the Senate voted to confirm her on August 3. The entire process took 42 days.

per Sean Davis

Ken B said...

Trump will. If he doesn’t he loses his base. He also loses those not in his base who respect his courage.

I predict, with low confidence, Amal Thapar.
Reasons, aside from being a good pick:
1 Let the Democrats attack the colored son of immigrants.
2 Boosts Mitch in Kentucky
3 make the Democrats show their bigotry against Catholics

Guildofcannonballs said...

Dagnabbin' doggone Murk will have as much effect on this Trump pick as she did on the last Trump pick.

I still, following politics a lot, don't understand why the Murk's non-vote, (not) leading to a 50-48 confirmation, was anything other than "derp derp I hate my state and I hate my country and I hate Trump derp derp" but smart folks have intimated there was something she did beyond soil herself again. I've asked before what I am missing and nobody knows, I am sure they would brag if they did know something I didn't. I brought up a hypothetical: If there is a "you gotta win by two" rule in the Senate and ergo her Murky non-vote actually allowed Brett his seat that is one thing, but I don't think there is any such "you gotta win by two" rule currently followed, so her shitshow didn't mean shit.

Collins is the one to wonder about. Is she gonna lose her election? One last act of a historic* woman (I presume) on the SCOTUS before she bows out gracefully?

*7th Catholic to serve simultaneously on the court, although we are still vastly underrepresented because of historic bigotry when thinking of all the Catholics that should have been on this, and all previous, courts

Ken B said...

John A Cohen, in his ungrammatical comment, proposes a nonsensical “Obama principle”. If there is a principle upon Obama which acted it is “I won and elections have consequences.” Trump too should act.

Kansas City said...

Before reading Ann's comment, I thought: (1) there would not be 50 R votes to confirm a choice this year; and (2) the best move would be for Trump to name his choice and say he will ask the Senate not to proceed provided Biden names his choice.

Not sure how Biden would react. Or even how it would play out - depends on who each side picked. Would make the election even more interesting.

Big Mike said...

"My most fervent wish is that I will not be replaced until a new president is installed."

I can't think of a better reason to proceed with a nomination right now.

rcocean said...

"If Trump should succeed in getting his choice passed and accepted, the Dems would use that as an excuse to pack the Court at their earliest opportunity."

You're behind the curve. The Democrats are already saying they should pack the court because of Garland. Sorry, putting Trump's choice on the court, won't affect what the D's do. Thanks for your "concern".

StephenFearby said...

Trump has already given his (expanded) list of prospective Supreme Court nominees.

Since Biden hasn't, there probably will be pressure on him to issue his own list, which almost certainly won't include names recommended by the Federalist Society.

Since those names will draw heightened scrutiny, it would probably be in his interest to delay announcing them.

Ken B said...

The cannibal fired from CNN threatens riots and destruction if “they” even try to replace RBG.

Krumhorn said...

Full speed ahead!

- Krumhorn

I'm Full of Soup said...

What’s Murkosdli point of delaying til post election? Will the election result affect how she votes?

BJK said...

https://www.whitehouse.gov/briefings-statements/additions-president-donald-j-trumps-supreme-court-list/

Fascinating to look at the newest list, given the very real chance of a nomination before October. A.G. Cameron just spoke at the Republican convention to generally-positive reviews...but I'm just not sure how the Breonna Taylor case would play out with Senate Dems during the confirmation process. His name is the major wild card on the list.

Outside of Cameron, I suspect there will be pressure to name a female nominee for the seat.
Judge Rushing has clerked for two of the conservative justices (Thomas, plus Gorsuch while he was in the 10th Circuit). Kate Todd, the President's Deputy Counsel, also clerked for Justice Thomas. Ms. Todd strikes me as the stealth candidate, for better (no judicial record) or worse (Harriet Miers comes to mind).

If you're looking for a swing state nominee, there's Judge Lagoa from Florida. How hard would the Senate Dems fight a latina nominee from the Sunshine State, risking electoral blowback in the process?

HMuns said...

We can only hope.

Sebastian said...

"Obama's principle"

LOL, as the kids say.

Never thought I'd see those two words joined.

Anyway, the Dem principle is power BAMN, to establish prog dominance. GOP should act accordingly, while it can.

historyDoc said...

Knowing that the upcoming election will almost certainly be contested all the way up to the Supreme Court, it would behoove Trump to add another conservative to the bench now to improve his chances of prevailing. Would not want to rely on John Roberts in a 4-4 court.

Trump knows this.

Bay Area Guy said...

Question for the Legal Eagles

If Dems are free to nominate a Justice who is committed to upholding Roe v Wade, is there any reason why Prez Trump shouldn't appoint someone committed to overturning it?

Kansas City said...

Agree with Big Mike.

Arrogant that RBG would presume to say it. Also shows that, even to her, it is pure politics.

Guildofcannonballs said...

This is a link to Hitler nowadays I'm told, literally.

Big Mike said...

I should add a very important caveat: Senator Burr is fully and completely owned by Sen Warner.

Warner is up for reelection. His opponent is a retired Army officer who lost a leg in Iraq named Daniel Gade. You can donate to Gade here.

Why do I think Gade has a chance? (1) Six years ago Mark Warner squeaked past a lackluster candidate, winning with less than 50% of the vote. (2) After taking both houses of the legislature in 2019 the Democrats badly overplayed their hand, attempting to pass gun confiscation legislation, post partum abortion, and other pet projects. They have succeeded in voting to permit prosecutors to treat assaulting a police officer as a misdemeanor instead of a felony. Real people are pissed. Will they take it out on Warner. Maybe.

Drago said...

The most relevant "obama principle" is one where an outgoing administration weaponizes law enforcement and intelligence agencies of the US and its allies to attack and frame domestic political opponents and attempt a coup to unseat a duly elected President of the United States.

But JAC "forgot" to get into that one....

Drago said...

Kansas City: "Before reading Ann's comment, I thought: (1) there would not be 50 R votes to confirm a choice this year; and (2) the best move would be for Trump to name his choice and say he will ask the Senate not to proceed provided Biden names his choice."

No good.

And Trump won't fall for that.

If Biden were to win, the democraticals would simply go to the named prospect and get that candidate to bow out due to "personal" reasons and then they would put in their marxist choice.

Any other thoughts about what dems would do in that situation are laughable if they don't include the democrats lying and changing everything after its too late to stop them.

Oh Yea said...

"Days before she died, Ginsburg told her granddaughter that she felt strongly that her Supreme Court seat not be filled until after the presidential election, according to NPR. 'My most fervent wish is that I will not be replaced until a new president is installed,' she dictated in a statement to her granddaughter, Clara Spera."

If this true it is a black mark on her legacy. Surely a Supreme Court Justice knows it is not their place to add extra constitutional requirements for the selection of their replacement. This isn’t a royal process where the king selects their heir.

Megthered said...

So Ruthie spent her last moments on earth thinking about politics and how to screw over Trump. Wow.
I believe she has been dead for days and the Dim party has been trying to keep it quiet for an October surprise. I wonder what happened to change their minds?

Bushman of the Kohlrabi said...

John A Cohen, in his ungrammatical comment, proposes a nonsensical “Obama principle”. If there is a principle upon Obama which acted it is “I won and elections have consequences.” Trump too should act.

You would think a lawyer wouldn't need to resort to inventing fake rules for appointing Supreme Court judges. IANAL but don't they teach these things in law school?

Skookum John said...

Let's hope the Right greets this sad news with no less grace, respect, and dignity than the Left displayed when Margaret Thatcher passed away.

Steven said...

Because Trump already got to nominate one Supreme Court Justice who died almost a year before Trump became president. Trump can't cherry-pick the parts of Obama's principle that he likes in order to choose 3 Justices when he shouldn't chosen only 2.

Obama is the man who chose to bet a Supreme Court vacancy on Hillary Clinton getting elected, rather than nominate someone conservative enough to convince the Senate to confirm the nominee in the face of what looked to be Trump's probable election loss.

That action was Obama's free choice. That Obama's gambling proved to be a staggeringly bad bet does not, in any way, create any obligation on Trump's part to refuse to make a nomination.

Guildofcannonballs said...

"Let their choices be part of the election process" is tautology.

Do better.

Us Trumpkins?

We gon' Be Best bro.

Hop on the big train. Join the winning team fella. The American style of government will continue beyond 2020, for better.

Kids in politics is stupid. But if the kitchen sink ain't there, ya gotta throw out the kids then. Bathwater.

MayBee said...

They'll try to confirm. What's the point of a republican Senate if they don't confirm republican scotus picks?

Drago said...

MayBee: "They'll try to confirm. What's the point of a republican Senate if they don't confirm republican scotus picks?"

Many of the republicans exist to bear witness to their horrible republican-ness to their assumed democratical betters and to beg forgiveness of the democrats and media for existing.

FullMoon said...

Biden's list will include Trans, male2 female, female to male. Hispanic, Gay Hispanic. Black, gay black, black trans, Hispanic trans, Black Hispanic, Dr. Fauci, Al Sharpton, LeBron, Cardi B., Adam Schiff.

Hoping to cover all bases.

FullMoon said...
This comment has been removed by the author.
MikeD said...

As a die hard anti-Harris/Biden Presidency, I can't believe the President will submit a nominee to the Senate prior to re-election. Just tell us who'll you be nominating in 2nd term and challenge Harris/Biden for their nominees name. Elections have consequences & rejected SCOTUS nominee won't be of help against DNC cheating.

Big Mike said...

@Kansas City, much obliged.

Mike (MJB Wolf) said...

Fill the bench!

LilyBart said...

The Dems would do it - so why shouldn't Trump?

anti-de Sitter space said...

Why do I cringe when I see a post like this where Althouse is telling us how Meadehouse thinks/jabbers at home?

You can tell that they’re super impressed w/ their POV, hence the public sharing.

Yikes!

BTW, I’m torn between choosing a favorite re this blog. Sometimes it’s the bloggress, sometimes it’s Doc Mike. Their both so cool. And funny!

I dunno.



roger said...

Amy Coney Barrett

Char Char Binks, Esq. said...

Althouse for SCrOTUS!

walter said...

Steve Deace
@SteveDeaceShow
·
2h
Another reason this seat must be filled — we cannot possibly have a 4-4 deadlocked court heading into an election that’s probably going to end up there. Would create an appellate nightmare that threatens to spill out into the streets.
Steve Deace
@SteveDeaceShow
·
2h
Another option for Trump to succeed #RuthBaderGinsberg is Judge Barbara Lagoa from Miami. Let Hispanics, who Democrats are already struggling with in this election, see for themselves what the Left really thinks of them.
Steve Deace
@SteveDeaceShow
·
2h
Amy Coney Barrett should be the pick, and let suburban women see for themselves what the Left really thinks about them.

Chennaul said...

Installed?

Is anyone else bothered by that word?

It just does not sound like a word Justice Ginsburg would say.

Gahrie said...

If Dems are free to nominate a Justice who is committed to upholding Roe v Wade, is there any reason why Prez Trump shouldn't appoint someone committed to overturning it?

You could make such an argument based on stare decisis. Roe V Wade is established law, so you could argue that supporting Roe is merely defending stare decisis, and not a political position on abortion. Overturning Roe is a commitment to overturn the status quo, and thus an openly political position on abortion.

That being said, the only reason Trump shouldn't is because there are still some RINOs in the Senate that would use it as an excuse to vote against his nominee. If he's going to, he should go with Barrett.

Quaestor said...

"Days before she died, Ginsburg told her granddaughter that she felt strongly that her Supreme Court seat not be filled until after the presidential election, according to NPR. 'My most fervent wish is that I will not be replaced until a new president is installed,' she dictated in a statement to her granddaughter, Clara Spera."

If this is true, then it is irrefutable evidence that Ruth Bader Ginsberg was intellectually and ethically unqualified for membership in the Supreme Court of the United States. Nowhere, repeat, NOWHERE in the Constitution, the Federalist Papers, or any creditable scholarship on the Court is it even implied that the panel of justices is required to be or even ought to be "balanced" politically. Justices are supposed to scholars of the law, not agents of political interest. I suspect it is true because I cannot recall a single instance of Ginsberg voting against her own political prejudices, the real test of noble temperament, or recusing herself from a case. However, in respect for the dead, I damn this Clara Spera bitch for besmirching the memory of an Associate Justice. If is it true, then may Ruth Bader Ginsberg's soul boil in the same infernal cauldron as the shade of Roger Taney cooks.

Joe Smith said...

In the Friday night thread, you refer to her as the 'great justice Ginsburg.'

What makes her so great?

She may be iconic...media hype for decades can do that.

But she's only great if you believe in abortion any time, all of the time, and paid for by somebody else.

XWL said...

Been awhile since I've commented, have I missed much?

Won't happen, but the most attractively chaotic play for President Trump would be to announce his intention to nominate Senator Kamala Harris to fill the vacancy.

Could claim he admires her tough stances on criminal justice as an Attorney General.

How could she refuse? How could the Democrats in the Senate fail to vote for one of their own?

If she refuses, it would be a tacit admission that she expects to replace Biden. Questions about Biden's fitness would become harder to ignore.

If she accepts, Biden would have to pick from a narrow field of electorally damaging replacements.

The cost for Trump would be maintaining the current court balance which would upset many within his base, but the potential reward would be an easier path to his second term.

SCOTUS appointments are purely political unfortunately, might as well leverage that fact for all it is worth.

Bay Area Guy said...

Maybe Christy Blasey Ford will resurface from the swamp - claiming in her squeaky voice that, under hypnosis, she has just rediscovered a memory of a lesbian love affair with whomever the female SCOTUS nominee will be.

Aggie said...

Full Speed Ahead.

1. RBG does not get to stipulate the disposition of her SC seat. It is not hers. It is not leased. She was appointed to a life term, and that is over. It is not governed by last wishes or will-and-testaments.

2. Who has been saying over and over again 'Do Not Concede The Election'? Oh that's right. Remind me how contested elections are decided, again. Oh, that's right.

3. Who has been saying over and over again, 'We Will Stack the Supreme Court When We Win' and 'We Will End The Fillibuster'? Oh, that's right. The same people who are now saying we 'must conform to our governmental norms and leave the seat open'.

4. And what rule would we invoke to nominate a new SC candidate? The Biden Rule: When the Presidency and Senate are held by the same Party, a candidate is voted on. Biden Rule. Delicious.

5. I've just read that nearly all SC Candidates are approved in less than 50 days once nominated..

FULL SPEED AHEAD FOR ALL OF THESE REASONS.

Francisco D said...

Trump will nominate Amy Coney Barrett, but the Senate will not hold hearings.

It will be another issue that the voters will be able to decide.

As a side note, I wonder if this will be a question in the debates, if Joe actually shows up.

Bilwick said...

"Joe Biden ought to come right out and say who he will nominate if he is elected."

I'll take a wild guess and say it would be some State-fellator or another.

RichardJohnson said...

Reza Aslan tweet:
If they even TRY to replace RBG we burn the entire fucking thing down.

Considering that Reza Aslan told us that Nick Sandmann had "a punchable face," we should not be surprised at the above gem of sensible political discourse from Reza.

I wonder how Reza would react to such rhetorical violence being applied to him in real time, such as being punched in the face or having his dwelling burned down. I recall that Reza Aslan was not pleased that violent rhetoric he applied to Nick Sandmann resulted in violent rhetoric being applied to his children. Tit for tat doesn't please Reza Aslan.

Skeptical Voter said...

Ruth Bader Ginsburg was tough; she made a bet she could outlast Trump--and she didn't. And it's entirely possible that her last wishes (and date of death) wouldn't have made any difference. Trump could win re-election.

exiledonmainstreet, green-eyed devil said...

MayBee said...
They'll try to confirm. What's the point of a republican Senate if they don't confirm republican scotus picks?

9/18/20, 10:06 PM

Exactly. No confirmation would be the end of the GOP.

Greg The Class Traitor said...

I can understand why Collins and Gardner would prefer not to have to vote on a SC nominee before teh election

However, if it does come to a vote, they have a choice:
Vote for the nominee, and maybe lose
Vote against the nominee, and definitely lose

Voting to support Democrat filibuster / delay? Definitely lose

Qwinn said...

I don't get references to RBG as "great". Frankly, if she were on my side of the partisan divide, I'd be embarrassed about it. RBG consistently sided with what everyone in the world knew would be the left's preference in every matter. She was nothing but a rubber stamp for leftist orthodoxy, each and every single time. Did she ever disagree with any of her fellow liberal justices in a way that left her alone with the conservative justices? I don't know, maybe there were, but if so I missed it.

Every argument was worked backward from the utterly partisan desired end result.

"Let's deem outright racism endorsed by Democrats to be permissible, but in 25 years maybe we can decide that we don't need to be racist anymore." Really? "Great"?

c365 said...

I'm sure it's been said, but this whole idea of "my seat" is terribly offensive to the people. It's the United States Supreme Court. Not Ginsburg's court. She left her mark over her serving many years. She has no right suggest her wish or will should be respected.

Ginsburg's "seat" belonged to a ww2 hero and pro football player before her who would have disagreed with many of her decisions. Did she dishonor Byron White? No. It wasn't his seat. He did his job as he saw fit. So did she.

You can't help but think so much less of a person where even in death their thoughts cling to spite over their legacy. A great person would have said, when I die, whomever is President ought to do the constitutionally correct thing and nominate a successor who deserves a vote.

No. She throws a hand grenade instead. Her pettiness in death reveals how transparently partisan she is. Does she really disdain the other members of the court who don't think like her?

Qwinn said...

Sorry, my mistake, that awful "25 years" decision was O'Connor, not Ginsburg.

Ginsburg just concurred.

Except wait, she was even worse.

"Justices Ruth Bader Ginsburg and Stephen Breyer concurred in the judgment, but did not subscribe to the belief that the affirmative measures in question would be unnecessary in 25 years"

Explicit racism today, explicit racism forever!

Ginsburg was partisan enough to pretend that her perfectly partisan decisions were also flawless and should be eternal.

Lee Moore said...

Murkowski, Collins and Romney declining to approve a nominee before the election, or before January 3, is not the same thing as Murkowski, Collins and Romney voting against a nominee.

So long as the R defectors only abstain, the GOP can afford six defectors.

mezzrow said...

I don't think anyone can deny that Justice Ginsburg gave all she had to fight for her beliefs and use her gifts to shape our nation to fit her vision of what it should be. I expect no less from her successor, no matter what their vision may be.

May God bless and protect the United States of America at this time of peril. I don't think we can expect anyone on either side of this divide to compromise in any way. We will have this settled before November 4th if there is any way to do so. If not, this election may seem a small thing in comparison to other events taking place.

Such interesting times we live in.

404 Page Not Found said...

All kinds of hagiological garbage will be posted about Ruth Bader Ginsburg. But the fact is, she was an unthinking rubber stamp for whatever left wing garbage was on the Democrat agenda du jour, and as such, was not only not a real judge, but a person with no particular respect for the principles of the US Constitution as written.

Good riddance.

Night said...

The Democrats have proved themselves unprincipled and lacking good morals with this impeachment nonsense and this Russian Hoax nonsense. Trump is wise to appoint a new Justice as soon as possible. That's what the Democrats would do.

M said...

That seat belongs to THE PEOPLE. Not her highness Ginsberg. Why would she even think her “last wishes” regarding a Supreme Court seat would be even remotely appropriate. I am trying hard to pray for that woman’s soul but she displayed arrogance and disdain for average Americans right up to the end. Unbelievable. You would think she would want to go out with a bit of grace, not still desperately grasping for power.

Tina Trent said...

Gail Heriot would be my choice. Brilliant, brave, and principled.

Trump could double-whammy the dems by putting up three or four people. Try to pack the court to show America what the Democrats are planning, plus make them argue against it.

Heriot AND Amy Coney Barrett. Heck, throw in Andy McCarthy. And Daniel Cameron.

wendybar said...

Good ole Joe, Pandering to the blacks again. It's ridiculous to that the left now thinks it is cool to judge people by the color of their skin rather than by content of their character. Talk about backwards and regressive....

Kevin said...

If Trump should succeed in getting his choice passed and accepted, the Dems would use that as an excuse to pack the Court at their earliest opportunity.

Time and again the Dems have shown they require no excuse to do anything which might benefit them in the short term.

Republicans limiting themselves in the hopes that Democrats will do likewise is why we have Trump.

Kevin said...

The progressive agenda is so against the Constitution the Dems must control the Supreme Court for it to be implemented.

And they clearly and loudly tell the American people this at every opportunity.

Kevin said...

In addition to the procedural arguments made above, Trump has been given an excellent opportunity to shake the election box and force Biden’s team to react.

Biden wants to spend six weeks talking about Covid deaths.

Trump can force him to spend six weeks talking about RBG’s replacement and why she shouldn’t be confirmed, and why the inevitable riots are “mostly peaceful” and “caused by Trump”.

There will be no oxygen in the room to discuss anything but blue state law and order, while college football ramps up and the economy continues to improve.

rwnutjob said...

“when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat.”
~National Review

Mike Petrik said...

RBG's putative use of the word "installed" is almost certainly an entirely benign substitute for "inaugurated." Waiting till a new president is "elected" would not serve her intended purpose. Some folks are reading way too much into her word choice.

Krumhorn said...

Pierre Delecto is assuming a comfortable lounging position awaiting his turn to be extensively fellated The only question is whether or not Mormons are permitted fellatio. There is the problem of all those unborn souls when the seed is cast upon infertile soil. Nonetheless, there is the expectation of cork soaking when important votes must be made.

- Krumhorn

Matt Sablan said...

Is anyone else annoyed that "death bed wish" has already become "days before she died?"

Like, I think the Biden rule on justices is a good rule. But, I don't know how you honor that when the other side has said: "Yeah. We're just gonna nuke the fillibuster and pack the court if we win." I think McConnell really would have said no to Trump, *if the Democrats hadn't promised the Congressional equivalent of nuclear war.*

Matt Sablan said...

"I expect Dem riots all over the country."

-- So, I'm torn. One reason I don't want Trump to do this is because we ARE sitting on a powder keg, and people may literally die because rioters don't want him to do this. But, the other, more fight-y part of myself says: Well, don't try telling the American people how to run our business. Put up a nominee to show the people who think they can control how the country runs by their petty, political demands, that they can't.

There's no good options left to Trump.

jeremyabrams said...

Who, with the family name Spera, would name their daughter Clara?

Matt Sablan said...

"As if the "its a tax!" example didn't prove what Roberts is all about all by itself."

-- That's my biggest Roberts disappointment. Guy literally said, "Sorry Government. Your argument was wrong, and you don't understand the law you're defending. I know you said it isn't a tax, but, it totes is, but luckily, you were wrong in such a way that saved your case."

Matt Sablan said...

"And Murkowski is up for reelection in 2022...a vote against a republican nominee would just about doom her."

-- You have a lot more faith than I do that voters' memories will last that long.

Matt Sablan said...

"If Trump should succeed in getting his choice passed and accepted, the Dems would use that as an excuse to pack the Court at their earliest opportunity."

-- They've already said they want to do that BEFORE Trump did this. So, pretending this is a concern on whether Trump nominates someone is ignorant of the political ground truth.

Matt Sablan said...

"My most fervent wish is that I will not be replaced until a new president is installed."

I can't think of a better reason to proceed with a nomination right now.

-- I mean, Americans classically dislike being told what to do. But, yeah. Could you imagine the left agreeing to not nominate someone to Thomas's previous seat if he said the same thing, or would he be called a fascist for trying to claim power for his party that should belong to the people and their elected representatives?

Doug said...

XWL - you don't'get' Trump, do you?

Matt Sablan said...

"You can tell that they’re super impressed w/ their POV, hence the public sharing."

-- I mean, if you don't like to hear someone's private thoughts made public... maybe don't go to the website they created designed to make their private thoughts public? Do you read a newspaper's opinion column and think, "Ugh. Why do these people write their opinions? Why are they sharing this!?" You're free to not have to listen to what they want to share.

D.D. Driver said...

If the republicans want to cram through a nominee under these circumstances, that's fine. But no crybaby bullshit when the democrats all out pack the court.

Aggie said...

Correction: My comment #5 at 11:39 9/18/20 is mistaken with respect to average days-to-confirmation for SC Candidates.

Here is a Federalist link to see recent historical norms:
https://thefederalist.com/2020/09/18/three-supreme-court-justices-were-confirmed-in-less-than-45-days-including-ginsburg/#.X2V7k_7EAU8.twitter

Still eminently do-able in the remaining term!

Andrew said...

Here's another option I haven't seen discussed: Trump could nominate Merrick Garland. Trump could explain it this way. Garland is more moderate than Ginsburg. He is an antitrust expert, and we sorely need that on the court. (We lost that opportunity with Bork.) And he is a First Amendment absolutist. He would actually (provided he doesn't "grow") be a disappointment to the left-wingers. He would, based on his record, protect free speech and religious freedom. How could Dem senators reject him, since he was Obama's nominee? The danger of course is that it would demoralize Trump's base, so it would need to be explained well. Not Trump's forte. But emphasizing the First Amendment and then antitrust issues could do it.

Having said that, I'd be happy for Trump to nominate someone like Thapar or Barrett. Let the chips fall where they may. Let the Dems burn down their cities. Expose their whole charade.

Freder Frederson said...

The strongest argument for Trump to go right ahead and immediately nominate someone is that President Obama made a nomination in the election year of 2016 when Antonin Scalia died.

Oh come on. Scalia died on February 13, 2016, 9 months before the election. We have 59 days left. You want to push through a nomination that must likely will drag into a lame duck session?

tcrosse said...

Not so fast. Let's see if the stone rolls back Sunday morning.

Matt Sablan said...

"Here's another option I haven't seen discussed: Trump could nominate Merrick Garland"

-- Why would he do that when every justice nominated by a liberal president has been more liberal than their "moderate" talking point has been? There's no real guarantee Garland would be moderate. It's just one of those "this would be crafty" ideas that is neither crafty or smart.

Matt Sablan said...

"If the republicans want to cram through a nominee under these circumstances, that's fine. But no crybaby bullshit when the democrats all out pack the court."

-- They've already said they wanted to do that BEFORE Ginsburg died. So, you're incorrect in the cause/effect here.

William50 said...

Mike Petrik said...

RBG's putative use of the word "installed" is almost certainly an entirely benign substitute for "inaugurated." Waiting till a new president is "elected" would not serve her intended purpose. Some folks are reading way too much into her word choice.

Installed is not the word that I find curious, it's her choice of the words "new president".

Bruce Hayden said...

“In addition to the procedural arguments made above, Trump has been given an excellent opportunity to shake the election box and force Biden’s team to react.”

I think that the nomination will be Judge Amy Coney Barrett, and that Trump will make it soon. It is the strategic choice. Trump needs to nominate a woman, after nominating two men, to burnish his feminist credentials. She would be a strong pro life figure, by the way that she has lived her life. I think that supporting her nomination could save the Senate seats of Daines (MT) and McSally (AZ). Daines because MT is reasonably conservative and family friendly. McSally because there are a lot of fairly devout Catholic Hispanics in her state. Hispanics are the one sizable demographic that seems to still like larger families, though this seems to dissipate the longer they are in this country. Sure, Biden is tokenly Catholic. But I don’t think his Catholicism is going to resonate with Hispanic Catholics.

Biden has other problems here. He cannot really come up with the list that Trump challenged him to do, because doing so would expose the radicals in his power base. And that means that he isn’t going to be able to provide a name of a RBG replacement for if he wins. That would be too divisive and two revealing of his base. His campaign will be in the position of opposing something with nothing. What he probably needs as a nominee is a Hispanic female. Except that the Court already has its Wise (Ha!) Latina. Two out of four Dem seats on the court being Hispanic females would not work well with the other demographics in their coalition. That is one of the weaknesses of their system of dividing the spoils by how much support they bring to the table. The party intelligencia May expect another Jewess. Not going to happen. 2 of 3 Dem Justices on the Court are Jewish. Blacks won’t stand for another one. Which really leaves a Black woman. That could be bad, with BLM burning down Dem cities around the country, and look too much like pandering. Besides, too many Black politicians taking the pro-violence side of the riots.

Which, I think, means that the Biden campaign dithers. Which means we are back to them fighting Trump’s choice with nothing. One side being decisive, and the other dithering. About time to rerun Crooked Hillary’s 3 AM commercial?

Getting back to the Senate, Schumer and his henchmen are vicious. They can’t help it. That is just the way that they are. My partner grew up socializing with Harry Reid’s family in Las Vegas. He was a fighter (and talked boxing with her father, who had also fought Golden Gloves). But he was, in the end, a pro family Mormon politician who knew he had to fight for his caucus if he wanted to keep the power of being their Senate leader. Schumer is more vicious, but much slicker. He doesn’t do well in much of the rest of the country. Dem nastiness came out in full force with the Kavenaugh confirmation. He was a guy, so presumably able to take it. Judge Barrett is a woman. The Dem males attacking her will look like thugs. Which leave the Females. Feinstein is usually formidable, but blew her credibility in the Kavenaugh Hearings. And most of the rest are lightweights, as we saw so vividly during the Dem nomination contest this last year. Sen Harris, as the Dem VP nominee, would probably be expected to take the lead. But probably won’t be able to keep from looking both vicious and stupid at the same time. In any case, the Dems fighting the nomination are probably going to be one of the best reasons to vote Republican in Senate contests.

Bruce Hayden said...

My theory right now is that what is important is having hearings before the election, but probably not the vote. Senators Makowski, Collins, and Romney can posture all they want, but realistically cannot vote against hearings. Or at least risk being the vote that prevents hearings. After all, what happens if they provide the deciding vote against hearings, Trump loses, and Biden/Harris nominates, and gets confirmed, a radical leftist, as RBG’s replacement? They might as well stay in DC after their term was up, because they probably couldn’t win an election for dog catcher back home after that. I doubt that McCain could have survived that sort of vote. What they can probably safely do is abstain. Which, right now, is what I expect to see.

I see no real advantage to having the Senate vote before the election. Keeping it up in the air will probably benefit Trump over Harris/Biden. And if Trump loses, first order of business, in the Lame Duck session, would be to vote to confirm Trump’s nomination. But I think that with a nomination of Judge Barrett, Trump and a Republican Senate majority are more likely than not to stay in office. And if that is the case, then absent any other compelling reason (such as forcing CJ Roberts to toe the line in election disputes), they can take up her nomination more leisurely in the next Congress.

RichAndSceptical said...

The Republicans have already ceded the high ground to the Democrats. The media and Democrats were quick to point out that Grassley, Graham, Murkowski, and Collins have already made statements they wouldn't vote for a Supreme Court nominee this late in the term. I have not heard or read of a single person in media asking what Democrats will vote for the nominee. Why is it accepted that some Republicans won't vote for the nominee and, at the same time, accepted that no Democrats will vote for? In other words, why is it that Republicans are exhibiting some level of "fairness" and Democrats are not, and no one even questions it?

If the Republicans were better at playing politics, they would at least attempt to turn the table on Democrats and demand that they give the nominee a fair hearing. Trump should immediately call out those vulnerable Democrat Senators up for re-election (Jones (AL), Peters (MI)) and demand they vote for the nominee. Either way, the Republicans win.

Mike (MJB Wolf) said...

Shorter Freder: don’t you ‘publicans dare exercise your lawful normal right to confirm or we will illegally pack the court, which just so you know we were going to do anyway. Nanner nanner!

Maybe not shorter but more honest.

Drago said...

Field Marshall Freder: "Oh come on. Scalia died on February 13, 2016, 9 months before the election. We have 59 days left. You want to push through a nomination that must likely will drag into a lame duck session?"

RBG, Sandra Day OConnor and JP Stevens were all confirmed in 45 days or less.

Go back to lying about legal cases that are in the news. You were at least getting pretty good at that.

Drago said...

D.D. Driver: "If the republicans want to cram through a nominee under these circumstances, that's fine. But no crybaby bullshit when the democrats all out pack the court."

Long before RBG died, the democraticals said they were going to get the majority in the Senate and then dump the legislation filibuster, ram thru statehood for DC and Puerto Rico (and probably the Virgin Islands and Guam as well), increase the supreme court to 13, blow open our borders and allow millions to pour in, offer free everything to illegal migrants, abolish the electoral college and go to nationwide vote by mail (and that would mean months of voting and no signature checks, postmarks would even be required).

Then they are going to push thru "hate speech" laws and take our guns.

That was all BEFORE RBG died.

And now the dems are telling us that if we don't vote the right way, they are going to burn it all down.

Well.

Its very clear these lefties/dems really won't stop until we are all shooting each other.

walter said...

Seems absurd on its face that someone whose career was writing her thoughts out would convey this wish orally through a grand-daughter. It's not like she hasn't had time to consider it.

Achilles said...

Readering said...

If Biden wins and Dems take Senate there will be some hard conversations among Senate leadership about future of legislative filibuster in context of size of USSC.

Good point.

Why should we wait for the impending civil war?

We cannot have a constitutional republic with these people.

Tina Trent said...

Bruce Hayden -- interesting, and I think you're right.

Greg The Class Traitor said...

D.D. Driver said...
If the republicans want to cram through a nominee under these circumstances, that's fine. But no crybaby bullshit when the democrats all out pack the court.

Wow, so if the Republicans follow the normal rules (when a seat on the SC opens up, the President gets to nominate, and the Senate gets to give or withhold its consent), the Democrats will destroy the Supreme Court as a Court, and turn it into a "super legislature" of every expanding size (whenever the President and the Senate are controlled by the same Party, more members get added until their side has control)?

Vote for bullying criminal thugs: Vote Democrat

Greg The Class Traitor said...

Hi Bruce, others who are in the "no vote before the election" camp, I'm sorry, but you're wrong:

1: No Republicans Senator, not even Mitt Romney, wants to be the one who sinks a GOP SC nomination. If you force them to vote, at worst 6 will abstain, leaving Pence to break the time

2: The Democrats are going all out to steal this election. That includes getting their judges to re-write the election laws in their favor (see WI Primary, PA General). We can not trust John "Trump can't do an EC overturning Obama's DACA EC" Roberts to shut down their theft attempts on a 5 - 3 vote.

We can trust him to shut them down on 6-3 votes, because 6-3 will "preserve the reputation of the Court" (the new nominee "didn't matter") and 5-4 with him on the wrong side won't.

3: With the Democrats going all out on Court Packing if they win, having ACB already on the Court before Election Day becomes a huge electoral advantage for Republicans.

Do you support the 2nd Amendment? Then you must get out and vote, in the Senate and for President, for the GOP. Because your gun rights are gone if the Dems get the White House and the Senate.

"My State wouldn't ban them"? Doesn't matter, the Feds will, and the newly packed Supreme Court will approve. Thing Brady Bill x 10.

That right there could flip the VA Senate race, and make sure Trump wills every upper Midwest State.

4: Right now, Trump has the moral authority to appoint, and the Senate has the moral authority to confirm. After the election, if Trump loses or the Senate flips, that moral authority is gone.

Manchin voted against the Nuclear Option in 2013. If the Senate is 50-50 and Biden is President, he, so some other Democrat, MIGHT oppose a Court Packing scheme if ACB is confirmed before the election. There's no way in hell he or any other Democrat would vote against it if the GOP put ACB on the Court AFTER losing the election.

The ONLY reason why the GOP Senate nuked the filibuster for SC nominees is because the Democrats filibustered Scalia's replacement by Trump after Trump had just won an election on that issue. There is no way it would have been nuked for Kavanaugh, or for ACB.

Voting on ACB after the election would give the Democrats the same gift that they gave the GOP when they filibustered Gorsuch.

Don't do it, confirm before the election

DEEBEE said...

Whoever made the decision to not tell Trump, possibly did him and his “deplorsbles” a service. Any impromptu wrong words from Trump or reactions by his supporters would have possibly given Sundown Joe ammunition

Greg The Class Traitor said...

Final point: Having the ACB confirmation battle going on is the absolute best campaigning a GOP Senator or Senate candidate could want.

1: The Democrats will go ape, and repulse anyone who actually care about civility. Anyone who talks about Trumps mean tweets will have the burning cities and offensive attacks on ACB pointed out to them

2: "A vote for a Democrat Senator is a vote for Court packing." As "Court packing" has generally been acknowledged as a bad thing, this is a powerful campaign argument. Having the hearings and vote going on during the campaign means it's brought up every day.

Want to see Mark Kelly lose is bid against McSally in AZ? McSally voting for ACB makes Kelly be a gun grabber and Constitution destroyer. Or, he could say "I absolutely will not vote to pack the Court", and lose enough of the looney left vote to not win, anyway.

3: If you're pro abortion and ACB is not approved before teh election, you pretty much have to vote for Biden and any D Senator on the ballot.

If ACB is already confirmed, a vote for Biden and a Dem Senate becomes much more problematical. Court packing means the next time there's a Republican President the Supreme Court doesn't just toss Roe, it orders a nationwide ban on abortions (super legislature, baby). Are you voting to make America a one Party State? No?

Then you don't want Biden and a Dem Senate.

Nominate ACB by Monday
Start hearings the following Monday.
Vote on the Judiciary Committee a week later
Vote in the Senate in a week or less after that.

Probably have 5 GOP Senators abstain, which means she wins 48 - 47, and none of the abstainers could have changed the result by voting no.

Everyone goes off to campaign, and the Supreme Court puts a leash on all "Hawaiian judges"

Joe Smith said...

"If she accepts, Biden would have to pick from a narrow field of electorally damaging replacements."

Harris is already damaging, as in she will 'help' carry a state that is already in the bag for Biden.

Forget the fact that she was out quickly in the primaries (Dem voters don't like her), it was a stupid pick because it didn't move the vote tally...

wbfjrr2 said...

Biden has a very safe choice, Merrick Garland. The smartest play for him.

Smartest play for the GOP is to confirm before the election and take the wind out of the Dem sails. Helps up and down the ticket. I’m with Mr Wibble on this one.

And Jon Althouse Cohen, boy, do better. You’re not in the same league as your mom or the followers on this blog. Sadly.

D.D. Driver said...

Wow, so if the Republicans follow the normal rules (when a seat on the SC opens up, the President gets to nominate, and the Senate gets to give or withhold its consent), the Democrats will destroy the Supreme Court as a Court, and turn it into a "super legislature" of every expanding size (whenever the President and the Senate are controlled by the same Party, more members get added until their side has control)?

Everybody gets to do whatever they have the political power to do. My only point is don't be a crybaby when the shoe is on the other foot.

PJ57 said...

I fear nominating someone pre-election will be a mistake. It will rile up all those suburban women who think the right to kill their own children is the most important right on the planet. I have two of them in my own household I regret to say.

Greg The Class Traitor said...

D.D. Driver said...
Everybody gets to do whatever they have the political power to do. My only point is don't be a crybaby when the shoe is on the other foot.

There's these things called precedents

It's not "being a crybaby" to say "you're violating the precedents, and we'll make you pay for it later."

It IS "being a crybaby" to whine about the other Party following the precedents, especially when your'e the ones who created them

Greg The Class Traitor said...

PJ57 said...
I fear nominating someone pre-election will be a mistake. It will rile up all those suburban women who think the right to kill their own children is the most important right on the planet. I have two of them in my own household I regret to say.

Most of those women live in States that won't ban abortion even after Roe is overturned

And they're already riled, at the realization that Roe will be overturned if Trump's nominee gets on the Court

So it's better for them to get riled by the Dems acting like jackasses after Trump and Mitch slam the nomination through

Nichevo said...

won in the fall."

And (same link): "Days before she died, Ginsburg told her granddaughter that she felt strongly that her Supreme Court seat not be filled until after the presidential election, according to NPR. 'My most fervent wish is that I will not be replaced until a new president is installed,' she dictated in a statement to her granddaughter, Clara Spera."



Are wishes a thing in Judaism? Because we're mostly through Rosh Hashanah at this point and I don't think wishes are a thing. I do think she missed the boat on getting inscribed and sealed in The Book of Life, though. On the bright side, she misses Yom Kippur.

Wouldn't it be nice if, instead of 2020 (AD) (or CE) being the poison, it was 5780 in the Hebrew calendar, and now we can look forward to a fantastic 5781?

Nichevo said...

Matt Sablan said...
"My most fervent wish is that I will not be replaced until a new president is installed."

I can't think of a better reason to proceed with a nomination right now.


Me neither. My interest in the wishes of Ruth Bader Ginsburg is precisely equal to her interest in the wishes of me and mine.