In her last week of life, U.S. Supreme Court Justice Ruth Bader Ginsburg told her granddaughter, Clara Spera, what she hoped the outcome would be for her eventual replacement on the court.
“My most fervent wish is that I will not be replaced until a new president is installed,” Ginsburg reportedly told Spera, who appeared in the excellent documentary RBG with her grandmother.
Sadly, a deathbed request is not legally binding, but neither was Senate Majority Leader Mitch McConnell’s denial of a hearing for Merrick Garland, President Barack Obama’s nominee to replace Justice Antonin Scalia. McConnell’s “no hearings, no votes, no action whatsoever” rule on Garland had no legal, constitutional basis; he simply did not want to give Obama another appointment.
Opinion by George D. Lang
Now, of course, McConnell and his ilk, including U.S. Senators Jim Inhofe and James Lankford of Oklahoma, are displaying their lack of principle, honor, and character by supporting a quick vote in favor of President Donald Trump’s nominee. On March 27, 2016, Lankford and Inhofe released a joint column in The Oklahoman that only gave reasons for opposing Garland’s hearing based on anti-choice, anti-regulation, and anti-environment justifications.
“Americans have the opportunity to determine what direction the country will take for the next generation, not just the next four years,” the two Senators wrote. “Voters should have the final voice in the balance of the court. After all, it is the American people who will bear the burden of the court’s decisions.”
Again, nothing about their justification is based on constitutional law. It was just what they wanted. McConnell’s stranglehold on the Senate ensured that important Supreme Court business was held back until Trump nominated Justice Neil Gorsuch 11 days after his inauguration. Gorsuch was confirmed April 7.
Now, we face a more extreme version of the Merrick Garland situation, in which there are fewer than two weeks of Congressional business days on the calendar before Election Day, and yet Lankford, Inhofe, and the execrable U.S. Sen. Lindsey Graham, R-South Carolina, are now braying that a “united government” with the same party controlling both the Senate and the White House justifies their hypocrisy. This is not a legal argument.
In order for this to work for McConnell, in all likelihood he will have to bring up Trump’s nominee during the lame-duck session when McConnell’s majority might be a waning reality. What will it look like if, as is highly possible, a Senate Majority Leader transitioning to Senate Minority Leader and a lame-duck president push through a nominee while packing their bags?
Currently, only two Republican Senators are on record as opposing a vote on a new justice, Senators Lisa Murkowski of Alaska and Susan Collins of Maine, who furrowed her brow with an abundance of “concern” when she said, “President Trump has the constitutional authority to make a nomination to fill the Supreme Court vacancy, and I would have no objection to the Senate Judiciary Committee’s beginning the process of reviewing his nominee’s credentials. Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election.”
You could play football in the wiggle room Collins left for herself. Collins did not say she would not vote for the nominee if McConnell and the Senate Judiciary Committee, led by chairman Graham, were to proceed. Collins is not to be trusted. She is only to be defeated, and based on recent polling of the race, challenger Sarah Gideon is up anywhere from four to 12 points.
In an abundance of fairness, I point out that there is no constitutional restriction on the Republicans moving forward with a nominee this year, but following the party’s blockade against Garland in 2016, it would be an entirely dishonorable move. Considering that Garland was a key figure in the prosecution of Timothy McVeigh for the Alfred P. Murrah Federal Building bombing, Lankford and Inhofe’s decision to hold up Garland’s nomination was particularly odious.
Not that dishonor would stop either of Oklahoma’s Senators, much less the entirely amoral McConnell and Graham. Their duplicity, hypocrisy are now on display. They are all either too old or too dense to understand how YouTube works, how it preserves their lies and deceit like a mosquito in amber.
Lankford and Inhofe argued that they had to stand against Garland to protect the petroleum industry from Obama’s Clean Power Plan, farmers from the Environmental Protection Agency’s Waters of the United States (WOTUS) rules and women from having a choice regarding their reproductive rights. Imagine basing your entire justification on protecting our supposed God-given right to subjugate women and destroy the planet, and you have the makings of a Margaret Atwood novel.
Now, think about what is at stake with a Trump nomination to replace Ginsburg. Elimination of the Affordable Care Act, the repeal of Roe v. Wade and any chance of meaningful legislation to protect the environment are all on the table.
These are values and principles to stand on, not made-up procedural rules. Since Republican Senators thought a President should not be able to nominate a judge in his or her final year in office, then let this settle after the election.
If they are so confident that Trump will win, then they have time.