The death of Justice Ruth Bader Ginsburg has sent Democrats and never-Trumpers in a tizzy, out of fear that the late associate justice's seat will be replaced with a conservative — one who remains faithful to the Constitution.
The fear was so pervasive that the first tweet from Senate Minority Leader Chuck Schumer, D-N.Y., didn't honor Ginsburg's long career; it reminded everyone of Senate Majority Leader Mitch McConnell's reasoning for his refusal to consider then-President Obama's Supreme Court nominee in 2016.
"The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president," Schumer tweeted, which were the Kentucky Republican's precise words in 2016.
First of all, the president is required to fill judicial vacancies without regard to when they may arise.
Article II, Section 2 of the Constitution provides that the president "shall appoint ... judges of the Supreme Court."
Then the nomination heads to the Senate. But what of the so-called "McConnell rule," preventing the Senate from acting on Supreme Court appointments during a presidential election year, quoted by Schumer?
It doesn't apply for at least two reasons.
The Federalist senior editor Mollie Hemingway reminded everyone of the first.
"You can disagree with the McConnell rule, which was previously known as the Biden rule, but you should describe it accurately," she said. "It's no confirmations in a presidential election year *when Senate and presidency are held by different parties.* Doesn't apply this year."
Sen. Ted Cruz said that it wasn't simply a difference of "your party, my party" on ABC over the weekend.
The Texas Republican explained that "it's a question of checks and balances."
When McConnell refused to confirm Obama's choice of Judge Merrick Garland in 2016 to replace the late Justice Antonin Scalia, the "Senate and presidency [were] held by different parties."
That's not the case today. The Senate majority and president are both Republican.
And there's another, perhaps equally compelling reason the McConnell rule shouldn't apply to the present circumstances.
McConnell reasoned that during a presidential election year "The American people should have a voice in the selection of their next Supreme Court Justice."
Obama was a lame-duck president in his final months of office when he appointed Garland. There was no way in which he could be elected to a third term. Therefore the honor of appointing a new Supreme Court Justice should have been given to the victor in 2016, whether it be Donald Trump or Hillary Clinton — and by extension to the American people.
In this case the sitting president is just as likely — probably more so — to continue on with a second term as his opponent is to replace him.
Finally, November 2020 may be a time requiring the full complement of the high court.
Hawkish, a Bloomberg-funded Democratic data and analytics firm, predicted that Trump will appear to win — potentially in a landslide — on election night (emphasis on the word "appear.")
Hawkish explained that in the days and weeks following November 3, the race will tighten and Trump's comfortable lead may even evaporate as mail-in votes trickle in.
Newsmax White House correspondent Emerald Robinson translated that as a " pre-warning that Democrats plan on stealing the election through ballot harvesting," which allegedly occurred in several key California Congressional races in 2018.
Former House Speaker Paul Ryan said that what had happened in the Golden State two years ago "defies logic."
It's a process that might be called, "keep counting until you win."
If that were to happen this year, think of the 2000 Bush-Gore race and the battle of the "hanging chads." But instead of being limited to a single state – Florida — it could theoretically affect all 50 states.
The Bush-Gore race was ultimately decided by a narrow Supreme Court decision. If the 2020 election ends up in the high court, America could ill-afford even the possibility of a 4-4 non-decision decision.
The president revealed at a North Carolina rally Saturday night that he'll appoint someone to fill the vacancy this week and that "It will be a woman."
And the Senate majority leader announced that his chamber will fulfill its obligation in the confirmation process.
"President Trump's nominee will receive a vote on the floor of the United States Senate," McConnell promised.
Democratic response can only be described as unhinged.
Sen. Mazie Hirono, D-Hi., claimed that the GOP was attempting to "steal another Supreme Court seat."
House Speaker Nancy Pelosi, D-Calif, suggested she might impeach the president, the attorney general, or both, if the Senate goes ahead with a confirmation vote.
Despite the hyperbole, Trump is right to appoint; McConnell is right to bring the confirmation to a vote. It's the process demanded by the Constitution and perfected by 231 years of Senate tradition.
And all the whining from the party of Jefferson and Jackson won't change that one iota.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. Read Michael Dorstewitz's Reports — More Here.
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