Episode 302: RBG to ACB on SCOTUS
From Ginsburg to Barrett The death of Supreme Court Justice Ruth Bader Ginsburg and Trump’s nomination of Amy Coney Barrett to take her place has turned DC more upside down than it already was. How does Trump’s choice really change the makeup of the Court? And should the seating of a new Justice really be this big of a deal? Mentioned links: Supreme Court Justice Ruth Bader Ginsburg has died at 87 The Supreme Court’s real bloc is liberal Try to Understand the Fight What Mitch McConnell Actually Said in 2016 Democrats prepare bill limiting U.S. Supreme Court justice terms to 18 years Getting some shopping done? If you're going to shop at Amazon, please consider clicking on my affiliate link. Thanks! On Apple devices, you can subscribe to the podcast via iTunes. If you're on Android, listen with Google Podcasts. Stitcher Radio is another possibility for both Apple and Android devices. If you do download Stitcher to your phone, please use the promo code “ConsiderThis” to let them know where you heard about it. Browser-based options are the Blubrry Network and Player.fm. And if you have some other podcatcher or RSS reader, click here to get the direct feed and paste it wherever you need it. I would love it if you would spread the word about the podcast! Click the Facebook, Twitter, and other icons (or all of them!) at the bottom of this post to recommend "Consider This!" to your social media audience. Show transcript On the evening of September 18th, 2020, Supreme Court Justice Ruth Bader Ginsburg died at age 87 from complications from pancreatic cancer. It’s been something of a long road for the family, I imagine. She’s had it for a while so this was not unexpected. My prayers are with her family. Years ago, I asked my dad how he felt after his dad died. He said that everyone knew he had health issues for quite some time, so when he did die it wasn’t unexpected, but it still was emotional. It still hurt, so I imagine that’s how the Ginsburg family feels. Outside of her loss from a human perspective, the loss of her from her career position is going to turn DC even more on its head than it already is. It shouldn’t, because if justices do their job as intended, they merely settle disputes on how existing law, as written by the legislature, should be applied in specific cases. What we have instead are litmus tests and activists justices. When RBG was confirmed, the Senate voted 97 to 3 for her. This was back when supposedly the only thought was whether he or she was a well-qualified judge. The question was not whether she would rule the way one party or another wanted her to. But with Ginsburg’s nomination, and others, that was the game. Republicans held to the “well-qualified” standard as they did with RBG but even before her confirmation, and ever since, Democrats have had 1 question; will you rule the way we want you to? The game was exposed when Judge Robert Bork was destroyed by Democrats because they didn’t want him to rule against their wishes. Their decision was based on power, not fairness or competence. Liberal justices can be activists – they can rule based on what they want the law to be – but a conservative justice may not, according to the Democrats, because it gets in the way of their power grab. What they can’t get passed in the legislature, they just punt to the courts, and the liberal bloc of the justices can be reliably counted on to vote together, much more than the conservatives. The conservative justices are more likely to actually have diverse opinions on how the law should be applied, and that’s how the liberals get their power; vote in lockstep and hope for 1 conservative to waver. Republicans have since had to get into the mud-pit created by Democrats in order to get their nominees through, and now the votes are reliably along party lines with crossovers consisting mostly of senators who are in purple states. All this because the Supreme Court is now a “super legislature” and one vote here or there can change the meaning of a law, or just the meaning of a word or two, rather than doing this through our elected representatives. Anyone who cheers the misuse of the courts in this way is cheering against representative government. If later they claim to be for “1 person, 1 vote”, remind them of their love of 1 vote on the Supreme Court rather than in Congress, and then ask them to choose which side they want to be on. Otherwise, they’re just a walking, talking oxymoron. I would not want to be in the place of Amy Coney Barrett, Trump’s pick for Ginsburg’s replacement. The mud that she’ll be dragged through by desperate Democrats is going to be awful. Although they might back off just a bit in order not to create more Trump voters. This particular situation seems analogous to the death of Justice Scalia in the waning days of the Obama presidency. At that time, the majority-Republican Senate rejected Merrick Garland as a nominee by not bringing a vote to the floor. Democrats today are claiming that Mitch McConnell is being hypocritical because now he will move forward with Trump’s nominee in the waning days of his term. They claim the so-called “McConnell Rule” is not being followed by the guy who created it. Well, no. There’s a link in the show notes that shows what McConnell actually said. In short, he made it very clear that when the government is divided (that is, the Senate and the Presidency are controlled by different parties) and a seat on the Supreme Court open up at this late a date, then the Senate can, if they want to, leave the seat open until after the election. He actually reiterated this point 2 more times in that speech to be perfectly clear; well, to anyone who was giving him a fair hearing, that is. So no, they’re misquoting him to create a charge of hypocrisy. Then later this week, 3 Democrats in the House will introduce a bill to set term limits on Supreme Court justices. Yeah, I’m sure the timing is totally coincidental. The bill would limit the terms of Justices to 18 years. It would be staggered so that each President would be able to nominate 2 Justices per 4-year term. California U.S. Representative Ro Khanna, who will introduce this, said that, “It would save the country a lot of agony and help lower the temperature over fights for the court that go to the fault lines of cultural issues and is one of the primary things tearing at our social fabric.” Dude, it will only save the country agony if your compatriots in the Senate will quit with the uncorroborated accusations and the presumption of guilt. That’s all it would take. If not, then going through this twice every 4 years would be even more painful. One of the reasons that Democrats are yelling so much about this vacancy is because of a rule they created as another power grab. In 2013 they changed the rule that required 60 Senate votes – a supermajority – to just a simple majority; 51 votes. At the time, Republicans went to the floor one after the other, including Mitch McConnell, to caution that they’d be sorry someday for doing this. Well today is that someday, and the chickens have come home to roost, they are reaping what they sowed, and about 8 other clichés. So now they want to change the rules and limit terms, and insist on following a rule that they misquoted. You know, it’s interesting. To Democrats, the Constitution is a “living document” to be reinterpreted as they see fit, but apparently, the alleged “McConnell Rule” came down from on High and may not be altered. Funny how that works. 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