Commentary by Sanford D. Horn
September 21, 2020
Liberals, progressives, Democrats, and Socialists are using sheer emotion and felonious threats against the body politic and innocent American citizens in an effort to bully the President of these United States from completing his Constitutionally granted duties.
In case there is any confusion, and I pray we can all agree that the United States Constitution is the law of the land, Article II, Section 2 states, the President “...by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…” [sic]
And hopefully, to amplify that power granted the president via the Constitution, Amendment XX, Section 1 states, “The terms of the President and the Vice President shall end at noon on the 20th day of January… and the terms of their successors shall then begin.” [sic]
While a nation mourns the loss of Supreme Court Associate Justice Ruth Bader Ginsburg, the business of government marches on. With as much fervency as her supporters are arguing in favor of adhering to her supposed last words and request that her successor not be chosen until there is a new president, the Constitution supersedes such grandstanding. It would actually be sad and pathetic if Ginsburg’s last thoughts were political and not familial. If Ginsburg was concerned about retaining the seat for another liberal justice, she should have retired during the first three years of President Obama’s second term.
To be sure, Ginsburg, who died on Friday, September 18, at age 87 having served 27 years on the nation’s High Court, left an indelible mark in earning legions of fans to the point of being a rock star - replete with t-shirts, coloring books for children, even a feature film was produced. While no fan of her judicial decisions, my wife and I saw the movie and it was rather interesting. I appreciated her upbringing in pre-World War II, Depression-era New York. I associated with her having to endure anti-Semitism, and empathized with her having to fight twice as hard for her accomplishments simply due to her gender. For that, I am glad my own daughters, who admired the popularly nicknamed RBG, do not have to fight nearly as hard for their place in the world as young women.
All that being said, there is still a task at hand - a Constitutional responsibility to be carried out by President Donald Trump, regardless of what his detractors think, say, or threaten. There are no liberal or conservative seats on the Supreme Court. There are no black or white seats on the Supreme Court. There are no male or female seats on the Supreme Court. There are no Catholic, Christian, or Jewish seats on the Supreme Court. That a president chooses to replace a justice with a similarly categorized justice is his or her choice. In some cases it just makes sense - strategic political sense to be sure; let’s not sugarcoat it. Yet, I don’t seem to recall the fervor to violently overthrow the Union in 1991 when President George Herbert Walker Bush nominated Clarence Thomas to the Supreme Court - replacing a liberal black justice - Thurgood Marshall, with a conservative black justice in Thomas. (Granted, there were other issues with which to contend.)
And of course with fewer than six weeks until Election Day, that Trump will select a woman to replace Ginsburg is a no-brainer. The controversy is two-fold - that she will be a conservative Originalist, and that she will be appointed less than six weeks out from an election. Before Ginsburg’s body was cold the Democrats invoked the name Merrick Garland more often than when he was nominated to the Supreme Court by Obama in 2016 - another election year. The GOP-led Senate declined to give Garland a hearing citing he was appointed by a Democrat president, while in this year’s appointment, a Republican president is nominating to a Republican majority Senate.
President Trump is simply carrying out his duties as laid out by the Constitution - the law of the land in the United States since 1789. There have been a number of presidential election year nominations to the High Court. Most recently, President Franklin Roosevelt, a Democrat, nominated Justice Frank Murphy in 1940; prior to Murphy, in 1932 President Herbert Hoover, a Republican, nominated Justice Benjamin Cardozo, a liberal; and in 1916 President Woodrow Wilson nominated Louis Brandeis, the first Jewish Supreme Court Justice. Even during the lame duck session of 1880, was William Burnham Woods nominated on December 15, by President Rutherford B. Hayes.
As there is no lack of precedent to appoint a Supreme Court justice in a presidential election year, a confirmation can also be accomplished in fewer than six weeks. John Paul Stevens, a 1975 President Gerald Ford nominee was confirmed by the Senate in 19 days. Current Chief Justice John Roberts, a President George W. Bush nominee in 2005, was confirmed in 24 days. The first woman to sit on the Supreme Court, Sandra Day O’ Connor, a 1981 President Ronald Reagan appointee, was confirmed in 33 days, and Ginsburg herself, a 1993 President Bill Clinton nominee, was confirmed in 42 days.
Senate Minority Leader Chuck Schumer (D-NY) said the GOP has “no right to fill it [the seat].” Perhaps Schumer missed Constitutional Law at Harvard Law School.
Ginsburg herself said in 2016, “there’s no Constitutional impediment at all to the Senate taking up a Supreme Court nomination in an election year.”
Senator Chris Coons (D-DE) objects to a pre-Election Day nomination on the grounds that roughly half the states have already begun voting. That’s a choice those voters made of their own volition. Should a 11th hour surprise or scandal erupt on October 22, will Coons demand those who have already voted have the opportunity to re-vote? That is one of myriad problems with early voting occurring six or seven weeks prior to Election Day. And quite frankly, anyone casting their ballot prior to the first debate (September 29), is probably not sitting on the fence.
That “legal scholar” Alexandra Ocasio-Cortez (S-NY) threatened Senate Majority Leader Mitch McConnell saying, “he is playing with fire,” and to all her acolytes, “let this moment radicalize you!”
“I’m just doing my Constitutional obligation,” said Trump, who expects to announce his nomination by week’s end. And all but two Republican Senators are on board with Trump making this appointment prior to Election Day. The holdouts are Lisa Murkowski of Alaska and Maine’s Susan Collins who is in the battle for her electoral life. Also in tough reelection campaigns are Republican Senators Cory Gardner (CO), Martha McSally (AZ), and Thom Tillis (NC), yet they support Trump making this appointment prior to November 3.
Even the feckless Democrat nominee for president, Joe Biden can’t make up his mind on this issue. In 1992 Senator Joe Biden (D-DE) was against nominating and confirming a new Supreme Court justice. In 2016 Vice President Joe Biden supported the nomination and confirmation of a new justice, and in 2020 candidate Joe Biden has once again reversed himself. So he was for it, before he was against it, before he was for it again?
For those complaining that a Supreme Court nomination will distract Congress from conducting its business pertaining to Covid or Covid-related recovery programs, since when can’t Congress multi-task? While the Senate is taking up the court vacancy, the House of Representatives should be handling the finances, as per their Constitutional duties. Wow, it sure seems the Democrats have a penchant for forgetting what’s in the Constitution. Perhaps that’s why it’s so easy for them to want to ignore, change, or cancel its contents.
Part of the threats coming from Democrats should Trump do his job and appoint Ginsburg’s replacement include impeachment. “We can impeach him every day of the week for anything he does,” said Speaker of the House Nancy Pelosi (D-CA) in an interview. Seems Pelosi also has forgotten her Constitution. Article II, Section 4 states, “The President… shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.” [sic] That kind of chicanery could only help the reelection chances of Trump.
Yet, even fellow Democrat Tim Kaine (VA) sees the impudence in impeachment, calling it “foolish.”
But Representative Joe Kennedy III (D-MA) is attempting to dig up the old playbook of Franklin D. Roosevelt, announcing that if Trump makes his pick in 2020, the Democrats will pack the court in 2021. And they can do that if the Democrats run the table winning the governmental triumvirate of the House, Senate, and White House. The Democrats are likely to retain the House, and the Senate is in their reach. Yet, even Ginsburg objected to court packing in an interview with NPR in 2019. “I think that was a very bad idea when President Franklin Delano Roosevelt tried to pack the court. If anything it would make the court appear partisan,” said Ginsburg.
The Democrats have already promised to wreak catastrophic changes to the Senate. If they can’t win elections legally and fairly, they are committed to an overhaul that would forever change the political landscape in the United States and render most of the Constitution obsolete. This is not hyperbole. Consider the laundry list of damaging changes the Democrats would likely attempt, akin to taking their ball and going home since they don’t like the rules.
The Democrats desperately seek to end the Electoral College, as proscribed by Amendment XII to the Constitution. The United States is a Republic, not a true democracy in that the popular vote is not the deciding factor in a presidential election. Imagine the easy path to the White House the lack of the Electoral College would create for the Democrats if they only had to campaign in Boston, Chicago, Denver, Los Angeles, Miami, New York City, Philadelphia, Portland, St. Louis, San Francisco, Seattle, and Washington, DC. Iowa, New Hampshire, South Carolina, and virtually every small or rural state would cease to be relevant to the Democrats.
The Democrats want to make Washington, DC a state, with two Democrat senators in perpetuity - again, a clear violation of that pesky Constitution. Then, while rearranging the stars on Old Glory, the Democrats want to add the Commonwealth of Puerto Rico as a state, also with two Democrat senators in perpetuity.
Additionally, the Democrats would attempt to end Senate equality - no longer would each state have two Senators. If that is a goal, they should run for the House of Representatives - the Founding Fathers gave us a bicameral legislature for a reason, as well as compromising on the New Jersey Plan and the Virginia Plan - this coming from the party claiming to support equality.
All of these machinations from court packing to growing the Senate are in support of two goals - keeping a liberal Supreme Court, and keeping their precious abortions from becoming illegal. There is almost, if not actually, an apoplectic sense that the addition of another conservative justice would facilitate the overturning of Roe v. Wade (1973), which should never have been brought before the Supreme Court in the first place. That they are willing to destroy public and private property in the name of murdering the unborn actually makes sense - their total disregard for life and property is mighty transparent. Threats of literally burning down the government and its buildings, of burning down the houses of senators who would allow such a “travesty” to occur, of physically attacking anyone who is pro-life, are not off the table. And thus I find it imperative to remind one and all of AOC’s message to her acolytes, to “let this moment radicalize you.” She is doing her damndest to turn this capitalist republic into a socialist totalitarian state with government control of virtually everything, including our speech.
The Republicans must not demurely kowtow to the Democrats or genuflect to their threats - theirs or their loyal followers. They must demonstrate backbone and stand up to their unhinged opponents who, by virtue of their silence, support arson, looting, rioting, tearing down statues and monuments, as well as the destruction of private and public property. Practicality should dictate that a high court vacancy leaves the possibility of a four to four tie should there be a repeat of Bush v. Gore (2000). Should that occur, and a winner is not determined by January 2o, 2021, G-d help us, but Pelosi would temporarily become president.
All that remains is the nominating, vetting, and confirming the next Associate Justice to the Supreme Court. Amy Coney Barrett, 48, Barbara Lagoa, 52, Joan Larsen, 51, and Allison Jones Rushing, 38, all with solid conservative bona fides, appear to be the leading candidates to replace Ginsburg.
Barrett currently serves as a judge on the Seventh US Circuit Court of Appeals located in Chicago, earning Senate confirmation 55-43 in 2017. She graduated Rhodes College magna cum laude with a degree in English Literature. Barrett attended Notre Dame Law School on a full scholarship, graduating first in her class, summa cum laude. She clerked for the late Justice Antonin Scalia - both strict Originalists. Barrett and her husband Jesse Barrett, an attorney, have seven children - five biological and two adopted from Haiti.
Lagoa is a Cuban-American whose parents escaped Castro’s Cuba following the 1959 Communist Revolution and was the first Latina to serve on the Florida Supreme Court. She serves as a judge on the Eleventh US Circuit Court of Appeals located in Atlanta, earning Senate confirmation 80-15 this past December. Lagoa is a Constitutionalist believing in judicial restraint. She graduated Florida International University cum laude with a degree in English and a member of Phi Beta Kappa. Lagoa graduated Columbia Law School, also Ginsburg’s alma mater. Lagoa and her husband Paul Huck, Jr., an attorney, have three children.
Larsen serves as a judge on the Sixth US Circuit Court of Appeals located in Cincinnati, earning Senate confirmation 60-38 in 2017. She graduated from Northern Iowa University and was first in her law school class at Northwestern University. Like Barrett, Larsen also clerked for Scalia. She and her husband Adam Pritchard, a professor at the University of Michigan School of Law, have two children.
Rushing serves as a judge on the Fourth US Circuit of Appeals located in Richmond, earning Senate confirmation 53-44 in 2019. She graduated from Wake Forest University summa cum laude with a degree in Music and a member of Phi Beta Kappa. Rushing graduated from Duke University School of Law having served as Executive Editor of the Duke Law Journal and later clerked for Justice Clarence Thomas. She and her husband Blake Rushing have one child.
As each of the four potential Supreme Court jurists have been vetted and confirmed by the Senate as recently as 2017, there is no logical reason for the confirmation process to take more than a couple of weeks. And a bigger question arises. If a number of Democrat senators have already voted to confirm each of the four aforementioned judges, what has changed for those same Democrats to now vote against these same Trump nominees?
“The people pick the president, and the president picks the justice. That is how this works,” said Senator Amy Klobuchar (D-MN), a one-time rival to Biden for the Democrat nomination. Thanks for that civics lesson, Senator Klobuchar. You’re right, the people did pick the president - Donald Trump in 2016, and win or lose on November 3, his term doesn’t expire until January 20, 2021. Let’s pray that common sense prevails and the voters remember the Trump accomplishments, as well as the frightening prospects a future “Harris-Biden” administration would foist upon the American people.
Sanford D. Horn is a writer and educator living in Westfield, IN.
