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RIP Ruth Bader Ginsburg: What’s Next?

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RIP Ruth Bader Ginsburg: What’s Next?

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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

I rarely do hottakes on big breaking political stories, but I felt I can’t ignore the untimely death of Justice Ruth Bader Ginsburg (1933-2020).

She’s most recently been known for her stinging dissents and has been the Court’s most consistently reliable progressive..

But before she was appointed by Bill Clinton in 1993, she shaped the practice of American civil rights litigation, especially during the 1970s, Ginsburg did for gender rights roughly what Thurgood Mashall had previously done for race.

In the blogging world, sometimes timeliness must trump all,  so a few thoughts.

Mitch McConnell has already promised his own hot take, a quick Senate conformation vote on Trump’s possible nominee of a replacement. I’m not going to speculate on possible candidates at this point, but for those of you who are interested in that kind of thing,  I will post the NY Posts’s take – a Republican wishlist if I ever saw one, Here’s who might succeed Justice Ruth Bader Ginsburg on the Supreme Court.

Trump must announce an appointee soon enough, and if he has a prayer of quick confirmation, especially if he’s aiming before the election..

Biden has said the confirmation vote should come in the next administration;I guess he’s banking on a Democratic win.

Recall that in a similar situation, when Scalia, the Court’s then most prominent conservative, died in February 2016, Republicans delayed throughout the final  year of the last administration and refused to confirm the ‘compromise’ candidate of Merrick Garland, saying confirmation should follow the November 2016 election results, Alas, Garland was middle of the road enough so  that his nomination didn’t enthuse progressive Democratic. Yet nor were Republicans fooled either (see Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court).

Garland’s nomination never came to a vote, thus leaving Trump to fill Justice Antonin Scalia’s empty seat with conservative Neil Gorsuch early in his term, and following with the confirmation of fellow conservative Brett Kananaugh for centrist Justin Anthony Kennedy. Neither of these replacements materially changed the ideological balance of the court.

By contrast, replacing Ginsburg with a judicial conservative would cement the rightward lean of the Court, setting it in stone for a generation  (unless Democrats are willing to consider some Court expansion plan or mandatory retirement, and have votes to do so – although there remain formidable Constitutional challenges).

Now it seems the same arguments about waiting for the election results should prevail, and even moreso with 3rd November general election less than seven weeks away, whereas  the Garland mess played out over the better part of a year.

Not so fast.

McConnell says this time is different. As the last situation was one of divided government, with Democrats holding the White House, and Republicans the Senate. Whereas this time, both branches are in Republican hands.

Well, all I can say is: it’s an argument. Not a particularly good one, but an argument.

Republicans will clearly try to force through a candidate. That would mean that if successful, Trump would have been able to confirm three justices during his first term.

Does McConnell have enough time to force through a confirmation? According to Politico, What’s next in the Senate’s colossal Supreme Court fight:

Yes, if he has the votes.

Since 1975, the Congressional Research Service estimates that it’s taken an average of 40 days for a Supreme Court nominee simply to get a hearing, let alone win the support of the Judiciary Committee and full Senate. But that timetable isn’t etched in marble; it’s up to GOP leadership.

The nominee has to be approved by the Judiciary Committee before reaching the floor, and Judiciary Committee Chair Lindsey Graham, working closely with McConnell, can tailor a schedule to their liking. There’s also nothing to stop Republicans from voting on a Supreme Court nomination after the election in a lame duck session. The real deadline may be when the next Senate convenes on Jan. 3, 2021.

Practical Considerations

Will Republicans be able to do this? The filibuster is gone. That means they need only a simple majority for confirmation. With the current make-up of the Senate 53-47, can they get there? Especially since if they get to a 50-50 vote VP Mike Pence would cast the deciding vote.

Unclear. But they will certainly try.

Will Democrats be able to block a nomination?

What tools do they have at their disposal?  With no filibuster available, as it was eliminated to push through the Gorsuch nomination, it looks like with only their own Democratic votes they will not be able to do so, and will require without support from at least some Republicans.

Again, according to Politico::

Democrats can raise objections about a potential nominee, raise hell in confirmation hearings and on the floor of the Senate, but ultimately, the committee and McConnell will decide when the key votes occur.

Who are those wavering Republicans?

Let’s begin with following tweet from Harvard constitutional law icon Laurence Tribe. Alas, the good professor has been suffering from a bad case of Trump Derangement Syndrome since November 2016. Yet I think he’s still sound on confirmation issues. And recall, he was largely responsible back in 1987 for derailing the nomination of Yale law professor and Reagan Supreme Court nominee Robert Bork. An act for which Republicans never forgave him and which probably scuppered any chance he might otherwise have had to serve on the Supreme Court.

Politico adds the following possibilities to Tribe’s list:

Other GOP senators to keep an eye on are incumbents who face potentially tough races and may want to boost their bipartisan credibility, such as Cory Gardner of Colorado, Martha McSally of Arizona, Thom Tillis of North Carolina and Joni Ernst of Iowa. But these senators have also stuck close to Trump and may not want to upset his supporters. McSally already announced her support for holding a vote on Trump’s nominee.

Later post, what difference it may make.

Now, Democrats don’t want you to know this. But over the last couple of decades, even some of their nominees have helped push the Court to the right, on a variety of issues, such  police procedural questions, various business-friendly decisions – such as class action limitations and caps on punitive damages – and civil liberties, search and seizure,  and mandatory sentencing issues.

Even moreso than when the leadership knifed Bernie to appoint Biden, this election will now shape us between team Red and team Blue. The alternative would be to embracing the position  of casting a pox on both these oligarchic houses, essentially one business party with two wings.

As Caitlin Johnstone explains in RBG Death Means Two-Headed Uniparty Will Threaten Americans With Removal Of Civil Rights:

The opportunistic galvanization process has already begun before Ginsburg’s body is even cold, with liberal influencers calling Democrats to rally to a November win for “the notorious RBG” and Trump supporters dropping their faux anti-establishment schtick and metamorphosing into a bunch of mini-Mitch McConnells. Leftists are being shrieked at by mainstream Dems that they need to fall in line and support Biden or they’re personally responsible for every civil right that is taken away by Ginsburg’s replacement.

I’m not here to tell Americans how to vote in November. I’d just like to quickly point out once again that an establishment which threatens to remove your civil rights if you don’t support it is an establishment that doesn’t deserve to exist.

Of course it doesn’t look like that’s what’s happening if you subscribe to the mainstream consensus perspective that America’s political system has two separate and oppositional parties. If that is your viewpoint, you will see one bad party trying to take away people’s civil liberties and one good party trying to stop them.

If however you recognize that America has two parties that are owned and operated by a single oligarchic class which has more or less the same overarching goal as far as ordinary people are concerned, it looks completely different.

If you understand that America has a two-headed one-party system designed to shrink the spectrum of acceptable debate down to arguments about how oligarchic agendas should be facilitated rather than if they should, what you see is a single entity threatening to take away your civil liberties if you don’t support it. A single establishment threatening to punch you with its right hand if you don’t let it punch you with its left.

Johnstone asks what is the correct stance to follow in this situation? I’m not so sure.

But I believe that there are plenty of arguments the commentariat can come up with. So I turn the issue over to you, dear readers, for discussion.

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