Ginsburg’s Death and Checks & Imbalances
The first thing everyone thought when they heard Supreme Court Justice Ruth Bader Ginsburg had died was her death just set off the inevitable political firestorm. And oh yeah, we then thought for a moment she was a brilliant Harvard Law School student, a great champion for compelling causes who overcame hardships and injustices to forge a remarkable, historical career. And oh yeah, we then thought for a moment our thoughts and prayers go out to her surviving family and friends. Really, we thought all of that in that order.
Getting back to the firestorm we all first thought of, where our thoughts will now stay fixed forever, we will have at it — the fight to the “death” for political supremacy. In other words, the on-going enactment of checks and balances — the hallmark of this Constitutional Republic. (I was being playfully cynical when I used the word “imbalances” in the title of this article… I know, you knew that.)
Justice Ginsburg’s death was the surprise no one was surprised about. For two decades she had serious health challenges and triumphed over them. Despite her fortitude against life threatening disease, it made her a person we couldn’t think about without always considering — should she “hang it up.” After all, we first thought of her personal well-being, and then thought of the political card game that comes with Supreme Court appointments. Or maybe it was the other way around without the concern for her well-being (I got cynical again).
It was reported her last dying wish was to have her replacement to the Supreme Court be named by another president other than Trump. OK, let’s assume that was her wish — dying or otherwise. If that mattered to Justice Ginsburg, she didn’t play the odds well.
When Obama started his second term in office, Justice Ginsburg was seventy-nine. That was the same age her good friend Justice Antonon Scalia was when he died while still serving on the high Court. Scalia’s death was also the slow building precursor to the current firestorm we now get to experience.
A Little History
Well, hold on. If you think of it, this all really started in 1987 with the Reagan nomination of Robert Bork to sit on the Supreme Court. That didn’t go well for Bork. The sting of it has always festered in the psyches of conservatives.
Moving along, H. W. Bush (the first Bush) nominated Clarence Thomas to the “Supremes” in 1991. Unlike Bork, Thomas did get confirmed, but not without a lot of accusations against him prompting Thomas to counterpunch by calling his confirmation hearing a “high-tech lynching.”
For about twenty-five years after Justice Thomas took his seat on the Court things were relatively calm for Supreme Court nominees and the rest of us. Two years after Justice Thomas was seated, Justice Ginsberg was the next justice confirmed to sit on the high Court. During this “calm” period in 2013, the then Senate Majority Leader Harry Reid pulled a move to gain political advantage for Obama Democrat nominees for judicial and Executive Branch positions including the Cabinet. It was called the “Nuclear Option.” It made confirmation for nominees need only a simple majority of Senate votes rather than a super majority. That made it good for the Dems because they were the majority at that time. The Republicans cried foul. But there was nothing they could do but warn the Dems this would come back to bite them.
Fast forward… With the unexpected death of Justice Scalia in 2016, Merit Garland was nominated by Obama. Because of the advise and consent requirement (a check & balance provision), the now Senate Majority Leader Mitch McConnell was allowed to “win one for the Gipper” (a Reagan metaphorical triple meaning reference I’m having fun with) by putting off the confirmation hearing for Garland in the event a Republican won the 2016 election for president — a long shot. But if that happened Garland could be replaced by a nominee from a Republican president. This played-out like a “payback” to Harry Reid’s “Nuclear Option.” Of course, the Dems cried foul… particularly when Trump won the Electoral College.
Now the stage was set for the Ginsburg “how are you going to make it through maybe eight years when you’re eighty-three and in bad health” watch. To ramp-up political tensions, Trump settled into the Presidency. (Somehow “settled into” doesn’t accurately described how we look at the Trump Presidency.) Let’s just say there’s never been a dull moment since Trump was elected President.
Garland’s nomination expired; and Neil Gorsuch was placed in nomination by Trump for Scalia’s vacant seat. Gorsuch got the partisan inquiry treatment at his confirmation hearing. And thanks to Harry Reid’s “Nuclear Option” Gorsuch only needed the simple majority votes that were cast along party lines with two Democrat exceptions to be confirmed. It was a masterful legal coup. Dems have been fuming over this.
Next came “a lamb to the slaughter” named Brett Kavanaugh. I never want to be the guy who offers fire insurance to someone whose house burned down the day before. Kavanaugh couldn’t have walked into a more hostile situation. There never was a more cutthroat display of political underhanded warfare. Kavanaugh understandably came to tears at his hearing.
None of it mattered to the final outcome because the Republicans always had the simple majority votes to confirm Kavanaugh even without a hearing. Justice Ginsburg has voiced her criticism about partisan wrongness and mistreatment of nominees at confirmation hearings.
As for the current firestorm, whether or not Justice Ginsburg said she wanted her replacement to be chosen by a president other than Trump (the obvious implication) is irrelevant to the structures of governance and political realities. Moreover, she correctly said, “Senators refusing to vote on President Obama’s nominee to the Supreme Court should recognize that a president is elected for four years not three.” With political firestorms everybody gets to eat their own words. It’s not necessarily hypocrisy as much as gamesmanship.
Senate Minority Leader Chuck Schumer and Representative Alexandrea Ocasio-Cortez held a presser calling to delay seating a successor to Justice Ginsburg until the possibility of a new president (Biden) takes office. (You know, just writing that last sentence made me feel the Dems are asking way too much. In politics you take your wins when you can. You don’t lose when you don’t have to.)
So, at the Schumer/Ocasio-Cortez presser there was a prominently displayed poster of Justice Ginsburg’s portrait with the purported wish for her replacement to be made by a new president stated graphically on the poster. I have to wonder whether Justice Ginsberg would approve of this use of her legacy. I also remind the Dems their case and efforts, however understandable, don’t square with Justice Ginsberg’s observation that a president is elected for four years.
What Could Have Been
Justice Ginsburg could have remained on the Court two years into Obama’s last term. Then resign so Obama could nominate her replacement. She would have had a good run and she would have liked it if Obama named her replacement.
But Justice Ginsburg probably thought — like most everybody — Hillary Clinton would win the presidency. She probably would have liked Hillary to name her replacement. For added measure, it might have been pleasantly intriguing to Justice Ginsburg that it was Bill Clinton, Hillary’s husband, that nominated Justice Ginsburg to the high Court, and now Bill’s wife would name her replacement.
But alas, as Obama said, “elections have consequences.” Trump was elected instead of Hillary. With Trump’s election Justice Ginsburg faced having to outlast the political “pendulum” swinging away from her until the “pendulum” may swing in her direction again.
However intellectually sharp, Justice Ginsburg was too old and too frail to play “chicken” if she wanted to insure her desired replacement. Beyond her personal desires are the much larger concerns for the Democratic Party and those that side with them. With her death at this time, the Court faces being seated as a six to three majority of conservative judges. With that result Justice Ginsburg might turn over in her newly dug grave.
Justice Ginsburg certainly fought courageously for what she and many care about. But for the big picture she also cared about, Justice Ginsburg didn’t get out when the getting was as good as it would get… as she could easily see.
As a side note: I find it interesting (that means nonsensical) that a judge who has liberal ideals or a judge who has conservative ideals would interpret the law differently. It shouldn’t matter what political ideations a judge has. But that’s how I sound when I’m naïve and idealistic.
Justice Scalia said, “The judge who always likes the results he reaches is a bad judge.” Scalia was pointing out the law is the law. The law is not liberal or conservative — it’s the law. Laws are not made to satisfy a judge’s personal values or causes.
There are good laws and bad laws. Legislators — not judges — make the laws and change the laws. If a judge wants to make laws, they need to win a seat in a federal or state legislative body.
Judges rule on whether a law (good or bad) applies to a case. The “fun” begins if a judge rules that a law is unconstitutional. And somehow politics will stick its nose in, to confuse any matter that suits some political end.
Checks & Balances
All the things you like and don’t like about politics come from the checks and balances part of our governance. Our Republic is divided into three co-equal branches of government — Legislative, Executive, and Judiciary.
Or are they co-equal? Well, that’s what checks and balances are for — to put equal back in the formula when any branch steps out of its lane to get more equal than the other branches. And so it goes. It’s a perpetual political food fight that’s baked into our system of government.
The term constitutional crisis is an overused misnomer. There never has been a constitutional crisis and there probably couldn’t be a constitutional crisis. What is referred to as a constitutional crisis is just good old checks and balances doing its thing.
With Supreme Court appointments our checks and balances are on hyper overdrive… like everything else political.
Ruth Bader Ginsburg
To Justice Ruth Bader Ginsburg — Thank you for your noble service to your country and the world. Rest in peace…