SCOTUS Crossroad

The death of Supreme Court Justice Ruth Bader Ginsburg has presented the President with an opportunity but one fraught with risks. Ginsburg’s death was no surprise since she was first diagnosed with pancreatic cancer in 2009. Even today pancreatic cancer is generally considered a terminal diagnosis with a five year survival of 5-20% depending on the stage of disease at diagnosis. She was hospitalized earlier this year and admitted to receiving chemotherapy. She was so dedicated to her work that she carried her briefs to the hospital so she could continue her work even during recent illnesses. She was nominated to the Court by President Bill Clinton in 1993 as only the second woman to serve on the SCOTUS. Despite her obvious failing health in recent years, she stubbornly refused to retire so as not to allow Donald Trump another Supreme Court pick. She was a reliably liberal vote in a divided Court and did not wish to see the balance shifted. Shortly before her death she made a statement to her granddaughter, “My most fervent wish is that I will not be replaced until a new President is installed.” She assumes that the President would not be re-elected to a second term. It appears that partisanship has found its way into every aspect of our lives, including the Supreme Court. The decision to submit a nominee to replace Justice Ginsburg will be made by the President, but I would suggest that he wait for the election results. With only 45 days remaining before the presidential election there may not be enough time for the Senate Judiciary Committee to review the candidate and vote. I believe a delay will motivate Christian conservatives to “get out the vote” and re-elect President Trump. In 2016 much of the Trump support came from his “list” of potential conservative SCOTUS nominees. The President’s first term has more than fulfilled his promise for the SCOTUS but for lower courts as well. By waiting until his re-election, the Democrats couldn’t complain that the process was rushed and not based on the “people’s will.”

The other consideration is the fact there are a number of Republican Senators who are in contested re-election contests, including Lindsey Graham, Susan Collins, Corey Gardner and Martha McSally. A Senate push to nominate a conservative justice 45 days before a general election may inspire the local Democratic electorate to defeat incumbent Republican Senators. Thus even should Trump be elected to a second term he would find it difficult getting a conservative nominee appointed to the Court. Should Biden win the presidency along with the Republican loss of Senate seats, we could expect a liberal nominee to the Court. Biden has already signaled he would likely nominate a black female to the Court. The Democrats are determined to play identity politics if they gain power. Both Biden and Harris have made Freudian slips by declaring the “Harris” administration. It appears that Kamala Harris will be the one calling the shots should the Biden/Harris ticket win the election. Although I think the President should wait, my guess is he will submit a Supreme Court nominee next week and Mitch McConnell will move forward. This should be interesting.

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