Supreme Court Justice Ruth Bader Ginsburg passed away yesterday. May she rest in peace.

You will see (and probably have seen) many such statements today and the next few days. These statements will be followed by a pause and an opinion on what should happen regarding her court vacancy. That pause might last some time, or it might be nearly imperceptible.

That’s a reality of politics. The more consequential an upcoming action, the more urgency the major players feel. And, indeed, it took a mere 15 minutes or so for Senate Minority Leader Chuck Schumer to declare that there should be no new justice before the election.

Majority leader Mitch McConnell promptly signaled otherwise, that should Trump put forth a nominee, the current Senate would vote on her (“her” is my guess, again because politics).

You are certain to hear a whole lot of arguing about what’s proper, or seemly, or precedented, or ethical, and you are certain to witness people of a partisan slant (i.e. just about everyone nowadays) argue that their side’s position is statesmanlike and the other side’s position is base and dirty. At the risk of over-repetition, this is politics.

I was once told by someone in the midst of a law school ethics class that “ethics” is whatever you can get away with. Keep that in mind as the mud and accusations fly over whether a nominee should be put forth by Trump, and voted on by the Senate. Republicans will argue that they were elected to the Presidency and Senate majority, and have an obligation to honor the wishes of those who voted them in by doing their jobs until they no longer have them, whether that be a couple months or a few years. Democrats will trot out tendentiously presented arguments of “precedent” to demand that Trump and McConnell demur, obviously presuming that Biden and Schumer will be in charge come January. They will remind us all of the Merrick Garland nomination, ignoring the blatant difference between that circumstance and this (Garland was nominated by a Democrat, into a Republican Senate. No Senate has confirmed an opposition party nomination in the final year in well over a century).

And, when Trump nominates someone, the Democrats will angrily gnash their teeth and vent their spleens. They’ll ignore the very stark reality that their predicament – a minority party without the ability to halt a Court confirmation – is a precedent set by one of their own. It was Harry Reid, after all, who first eliminated the supermajority requirement for judicial appointments, against the warnings made by many that it would bite his party in the ass should they lose their majority.

Which they did. And McConnell happily pointed at Reid as he extended that “nuclear option” to SCOTUS nominations. Goose, gander.

Scroll a bit further back, and you’ll find the ugliest precedent of all: the “borking” of Robert Bork. Guess who did that, and remember that when that party asserts possession of the high ground.

Fingers have been pointed and will be pointed, with each side blaming the other for being “forced” to do unseemly things because of even greater unseemliness. But, this is politics, and “unseemly” is at its core about what outcome someone desires. I refer you to the Joy Behar Rule, a candid admission that people often vote their interests rather than “higher” ethical considerations.

So it will be with the now-open seat on the Court. Everyone will argue that their positions and actions are their duty and obligation, or that of their elected representatives, and that their side has the moral high ground. Very few, though, will make those arguments against their desired outcome. Those who want a Justice of a more conservative (or dare I say libertarian) bent will advocate for a prompt nomination and vote, even if that vote gets pushed into the “lame duck” window after the election. Those who want a Justice more in line with Ginsburg’s liberalism will insist that it’s only proper the people get a chance to vote on who will seat that new Justice, wholly ignoring that every election is in part about the Court’s composition, including the last couple.

As I’ve said more than once, if the Democrats wanted to put their nominees on the Court, they should have won some more elections.

And, if Trump and McConnell succeed in seating someone, and the Democrats take the Senate and White House, don’t be surprised if we hear how the “unprecedented” and “wanton” actions by the Republicans make it only right that the Democrats add two new seats to the Court, to be populated of course with their own picks.

My personal preference? Any regular reader will know I’d much prefer an originalist Justice to one cut from the cloth of today’s Left. With government run amok, and with both parties showing insufficient interest in the restraints imposed by the Constitution, the Court is my last hope for reining in the runaway train in the near term.

As a previous President once noted, ‘elections have consequences.’ Trump’s election has had its share, good and bad, but it’s not over yet. He’s President right now, and ‘to the victor go the spoils.’ One such is the right to nominate people to the Court. Highfalutin dudgeon notwithstanding, there’s nothing improper about him nominating someone and there’s nothing improper about McConnell putting that someone to a vote. Don’t for a moment think that the Democrats would act any differently should the polarities be reversed.

As for RBG’s purported dying wish that her successor not be picked until after the election? Do you really think that, were Hillary Clinton President and Chuck Schumer majority leader, she’d have not retired out in order to give ‘her team’ a chance to put forth an ideologically similar successor? Let’s not pretend this, too, wasn’t politics.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.


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