Friday evening, Supreme Court Justice Ruth Bader Ginsburg passed away at age 87. It didn't take long for sources to report that Senate Majority Leader Mitch McConnell had proclaimed he would move forward quickly if President Trump nominates someone to succeed Ginsburg. Trump says he'll name somebody from his list on Friday or Saturday.
Moving forward would be a mistake for the president and Leader McConnell. Allow me to share my reasoning.
Before discussing the logic of waiting until November 4, it is essential to reflect on the life and accomplishments of Ruth Bader Ginsberg.
Whether one agreed or disagreed with Ginsburg's judicial philosophy, there is no question that she will be remembered as a giant in jurisprudence. Just the second woman to serve on the Supreme Court, Ginsburg was never shy about sharing her opinions, often reading her dissents from the bench.
If you have a daughter, a sister, a wife or just a mother, you must respect Ginsburg for her pioneering work on women's rights. Fighting several types of cancer since at least 1999, she was a battler. She became a cultural icon as the "Notorious RGB." Rarely do Supreme Court Justices achieve such notoriety.
There may never be two Supreme Court
Justices with more opposing views of the constitution than Ginsburg and Antonin Scalia. Nonetheless, they were close friends and frequently socialized together with their spouses. This country could use a little more of the civility Ginsburg and Scalia showed each other.
So what are the reasons to proceed or not proceed immediately?
Television talking heads worry that left-wing extremists who have used rioting, arson and lawlessness to advance their agenda all summer will ratchet up violence if Republicans move forward to replace Ginsburg before the election.
Threats cannot figure into this calculation. After 9/11, the consensus was, "Do not let the terrorists win." If the decision whether to proceed is based on what domestic terrorists may do, we have surrendered democracy.
However, the process a new nominee will face in the Senate Judiciary Committee is a serious matter. What Democrats did to Brett Kavanaugh, who was replacing a centrist, was the most despicable display in U.S. Senate history, but filling the seat of a hard-core judicial activist with somebody sure to be a constitutional originalist weeks before this election? Prepare for a three-ring circus that will further divide a tense and fractured nation.
More important is what was called the McConnell or Garland Rule. When Justice Scalia passed away 10 months before the 2016 election, President Obama nominated Merrick Garland to fill the seat. At that time Leader McConnell would not put the nominee up for a vote because it was too close to the election. McConnell, in turn, attributed the rule to what a former Senate Judiciary Committee chair had said after the disastrous Clarence Thomas hearings in 1992: "The Senate should hold off on additional confirmation hearings until after the presidential election." That chairperson? Joe Biden.
Now McConnell is saying that meant he wouldn't take a vote when different parties hold the White House and Senate.
Conservatives repeatedly chastise Democrats for their hypocrisy. Let's be consistent ourselves and not hypocrites.
Many conservative pundits have said Speaker Nancy Pelosi is happier keeping the COVID stimulus package as an issue rather than finding a solution. Well, Trump's reelection, and especially Republican prospects for maintaining control of the Senate, are better keeping SCOTUS as an issue rather than solving it now.
Can they even solve it now? Alaska Senator Lisa Murkowski has stated she would not vote to confirm a Supreme Court nominee before the election.
Maine Senator Susan Collins, already in the most challenging election struggle of her life, also declared her opposition to voting on a new Supreme Court justice before the election.
There's also no telling what 2012 Republican Presidential nominee and current Utah Senator Mitt Romney will do, but odds are he will vote against the president. McConnell can lose only three Republican votes or the nominee cannot go forward.
If a Trump nominee passes now, the incentive for conservatives to get out and vote is reduced, while even putting forward a nominee now will turn out more Democrats. On the other hand, making the election a referendum on the Supreme Court will ensure that there is no wavering among evangelicals and will help bring back the few percentage points of seniors that have moved to Biden.
Confirmation hearings will be ugly, making the Kavanaugh hearings look like a playground fight. The other choice is to let the open seat be an issue for the next seven-plus weeks. I can think of no other way more certain to bring wavering conservatives back into the fold.
If it doesn't work and Biden wins the election, Trump and McConnell can always create chaos by moving to confirm somebody during the lame-duck session.
So, please, Mr. President, don't proceed before the election.
Andy Bloom is president of Andy Bloom Communications. He specializes in media training and political communications. He is regarded as one of the leading radio programmers in the country. Andy served as communications director for Rep. Michael R. Turner, R-Ohio. For more information, his website is www.andybloom.com. For more of his reports, Go Here Now.
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