Should Trump Appoint a Replacement for the Notorious RBG?

When you view the Constitution as a “living, breathing” document whose language can be molded and shaped through litigation by unelected judges to fit current societal trends, you render the Constitution’s language essentially meaningless.

When you give the United State Supreme Court power it was never intended to have—to amend the Constitution judicially rather than through the amendment process the Constitution provides in detail—you create imbalance in our federal government’s three branches.

Historically, the Supreme Court has elevated to the level of Constitutional magnitude various behaviors and activities that our Founding Fathers likely never thought of much less actually considered to be the equivalent of God-given inalienable rights. They have taken the amendment process from the common people through their representatives and transferred it to a handful of judicial elites.

When you grant the Supreme Court this much power—or, perhaps, when the Court takes this much power—inevitably the Court and selection of new members become wildly politicized.

And when the Court becomes wildly politicized, everyone becomes breathless with anticipation and emotionally intensified when awaiting an important decision or a new nominee.

This happens because of the imbalance of power tilting so heavily in the federal judiciary’s favor.

And when everyone is breathless with anticipation and emotionally intensified, the Constitution and the rule of law quickly fade to black.

This is where we found ourselves a mere 15 minutes after the death of Justice Ruth Bader Ginsburg. Justice Ginsburg is being appropriately lionized for her trailblazing spirit, her brilliant mind, and her work to combat injustice, especially for women. And for her close friendship with former Justice Antonin Scalia, her judicial and political opposite. She was also highly critical of the treatment of then-judge and nominee Brett Kavanaugh.

Justice Ginsburg was an amazing woman who lived an amazing life. Although I disagreed with her on most of her opinions I have read over the years, I recognize she was a pioneer and an inspiration.

Flags will fly at half-staff. Tributes will pour out. Documentaries will air. America will mourn.

However, the business of America the government continues as it must.

According to some reports, Justice Ginsburg’s granddaughter, Clara Spera, said her grandmother told her on her death bed, “My most fervent wish is that I will not be replaced until a new president is installed.”

Did she really say this? She is about to meet her Creator, she is sharing her final moments with family, and her primary concern is who will replace her? Could be. Then again, considering the Justice’s well publicized disdain for President Trump, and the fact we are less than 2 months from his possible reelection, this could also be just a canard to boost Joe Biden’s chances.

Has anyone noticed that her “dying wish”—if, indeed, she said it—is inconsistent with the Constitution’s language?

Then again, I would not expect Justice Ginsburg actually to follow the Constitution’s words.

After all, she is the justice who wrote in her dissent in Gonzales v. Carhart which upheld the ban on partial-birth abortion, “In candor, the Act [banning the practice], and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court….” (emphasis added). Meanwhile, she dissented in District of Columbia v. Heller, a Second Amendment case that upheld the right to keep and bear arms in self-defense. Justice Ginsburg believed this right was restricted only to Revolutionary-era militiamen, making it antiquated an inapplicable to modern life. She would later clarify in an interview that Heller was a “very bad decision” adding, “If the court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new. It gave a qualified right to keep and bear arms, but it was for one purpose only…having militiamen who were able to fight to preserve the nation.”

With these two dissents, Justice Ginsburg held the right to partial-birth abortion in dramatically higher esteem than the right of law-abiding citizens to keep and bear arms for self-protection. Put another way, she derided a right in the actual text of the Constitution and that the Founding Fathers specifically believed was God-given, while she championed a “right” that is nowhere in the text and—in her own words—had been declared, not by God, but by “this Court.”

Justice Ginsburg’s view of the Constitution as a “living, breathing” document creates these inconsistencies. It makes us all dependent on the way cultural winds blow through the minds of black-robed elite judges. Politicization and societal changes create uncertainty. Why?

Well, what has people on both sides animated about who Justice Ginsburg’s replacement will be? And whether President Trump should nominate someone so close to the election? The survival of Roe v. Wade, the 1973 Supreme Court case that elevated to constitutional magnitude the right to abortion. Yes, there are other cases that could be overturned as well, but Roe is the biggest one. You can read Justice Byron White's dissent in Roe (it's short) for some perspective here.

If our nation had gone through the amendment process regarding abortion, the politicization of the Court would be greatly diminished. Instead, judicial activists of similar ilk as Justice Ginsburg “declared” the “right” to abortion and thereby stripped 50 states of their various abortion laws, failed to permit the people of these states to weigh in on the subject anew, and bypassed the amendment process without missing a beat.

Of course, what has Democrats and Leftists all apoplectic is that President Trump may move quickly to nominate her replacement before the election. Senate Majority Leader Mitch McConnell is already on record saying any nominee Trump makes will receive a full Senate vote. If McConnell follows through, it is fair to say there is some hypocrisy considering his refusal to bring Judge Merrick Garland to a vote when President Obama nominated him early in 2016. The distinction that he draws—the Senate and president are held by the same party now but were not then—is one worth discussing. But these days of polarization and instantaneous reaction, no one likes to get bogged down in details.

Meanwhile, not one to go quietly like every other ex-President in history, Obama weighed in with his usual duplicity. “A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.” Really? The guy who sicced his administration’s attack dogs in the IRS on political rivals? The guy who at the very least turned a blind eye to a highly questionable investigation of the Trump campaign during the 2016 election? This is the guy lecturing about everyday fairness and consistent application of the law? No thanks.

Then there’s Joe Biden. After learning of Ginsburg’s death, Biden stated, “[L]et me be clear that the voters should pick the President, the President should pick the Justice for the Senate to consider.” Well, wasn’t Trump elected president? And don’t Republicans run the Senate? And weren’t the senators voted in by the people? If President Trump nominates someone now, Biden’s precise point would be fulfilled. A president is the president until he leaves office. Therefore, he is entitled to exercise every duty under his charge. Perhaps poor Joe does not realize this.

So, the burning question is, should President Trump nominate someone before the election and, if so, should the Senate hold a vote?

The strongest affirmative argument I first heard was from Texas Senator Ted Cruz. He explained that because the parties are so deeply divided, and many Democrats have already talked of challenging the results if Trump wins reelection, we cannot go into the election with only 8 justices. I would add that the inherent problems and uncertainties with mail-in voting make challenges from at least one candidate in multiple states a near certainty. Obviously, a Constitutional crisis would result if an election challenge reached the Court and a 4-4 decision resulted. I would like to think the Court would not let that happen but who knows?

In the end, when I analyze these issues, I return to my original intent, strict construction point of view of the Constitution. The president is charged with appointing justices. His duties do not end 4 months before he might leave office. President Trump is not one to shrink from a fight. He should make his appointment and let the Senate decide whether to fulfill their duty and hold a vote before the election.

It would be politically risky for him to nominate someone now. But my reading of the Constitution does not give him the discretion to wait months.