‘It would be a brutal confirmation…’
(Ben Sellers, Liberty Headlines) After the knock-down, drag-out confirmation battle for Supreme Court Justice Brett Kavanaugh nearly tore the nation asunder, the White House and Senate are preparing for another, potentially even more divisive, showdown.
The two GOP-led branches are cautiously conferring on a list of possible nominees—and urging allied groups to be prepared—if health concerns force the ailing Ruth Bader Ginsburg, 85, to leave the bench, Politico reported.
The names would be culled in part from Trump’s earlier shortlist, which included Seventh Circuit judge Amy Coney Barrett.
But with Democratic activists having anticipated a Kavanaugh nomination as early as 2012, there is a greater sense of urgency now to avoid being railroaded by any surprise tactics that the Left may have had ample time to formulate.
At the same time, the Republican leaders must tread carefully while Ginsburg is still recovering from her recent cancer surgery in order to avoid sparking the righteous indignation of well-organized and well-funded liberal radicals, who spent weeks protesting in and around Capitol Hill last fall.
“They’re doing it very quietly, of course, because the idea is not to be opportunistic, but just to be prepared so we aren’t caught flat-footed,” one anonymous source told Politico.
Ginsburg, who took the unprecedented step of attacking Trump as a candidate, is unlikely to step down willingly, even if incapacitated, meaning the seat would become open only upon her death.
Chief Justice John Roberts said despite Ginsburg’s missing the start of oral arguments for the first time ever this week, she remained engaged in reading briefs, filings and a transcript of the proceedings.
Trump tweeted his well-wishes to her in December.
Wishing Supreme Court Justice Ruth Bader Ginsburg a full and speedy recovery!
— Donald J. Trump (@realDonaldTrump) December 22, 2018
Bucking a long tradition in which members of the opposition party avoided partisan fights over Supreme Court appointments (with only a few prior exceptions from Senate Democrats), both of Trump’s replacements—Neil Gorsuch for the conservative Antonin Scalia, and Kavanaugh for the moderate Anthony Kennedy—were near party-line votes.
With Gorsuch, protestations over the denial of Obama nominee Merrick Garland forced Senate Majority Leader Mitch McConnell to implement the nuclear option—a simple 50-vote majority rather than a 60-vote, filibuster-proof super-majority. Gorsuch eventually garnered 54 votes, with a handful of red-state Democrats breaking ranks.
The Kavanaugh vote was even tighter, with moderate Republicans being accosted and facing death threats for supporting the judge in the face of unsubstantiated, 30-year-old sexual-assault accusations. The 51–49 vote saw only one Democrat (Joe Manchin of West Virginia) and one Republican (Lisa Murkowski of Alaska) going against their caucuses.
John Malcolm, director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies, told Politico that the fight to fill Ginsburg’s absence with any conservative would be worse yet. “It would be a brutal confirmation,” he said.
Although Republicans netted three Senate pickups in the recent midterm election, giving them a 54-vote majority, the fact that Ginsburg’s successor would likely be her ideological opposite—effectively picking up a seat—hearkens back, once again, to the last big confirmation battle of the pre-Trump era.
“[I]f you are replacing Justice Ginsburg with a Trump appointee, that would be akin to replacing Thurgood Marshall with Clarence Thomas,” Malcolm said. “It would mark a large shift in the direction of the court.”
Like the liberal civil rights icon Marshall, who retired for health reasons during the George H.W. Bush presidency, Ginsburg has been the subject of much adulation on the Left, including books, speaking tours and a recent Hollywood biopic.
Politico said many of the prospective nominees to replace Ginsburg were women, which theoretically would derail the likelihood of sexual-assault claims such as those faced by Justices Thomas and Kavanaugh.
Leftist intersectionality theory posits that it would be impossible for a member of a minority class (e.g. gender-identity, race, sexual orientation, citizenship status) to commit such an act of victimization—unless it were against a member of another minority group even higher on the grievance taxonomy.
But with Trump Derangement Syndrome at fever-pitch, even a transgender illegal alien nominated by the president would likely come under intense scrutiny, requiring both a spotless record and an unflappable demeanor.