The Battle for RGB’s Replacement

The Battle for RGB's Replacement
The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator's Office.

( – The stakes for America’s future just went up with the passing of Supreme Court Justice Ruth Bader Ginsburg. The justice’s death puts the issue of the Supreme Court front and center in the 2020 election. As a result, the Democrats are ready to pull out every stop to prevent President Donald Trump from fulfilling his Constitutional duty to appoint a justice and the Senate’s responsibility to confirm one.

Democrats and the media will do everything they can to confuse the public for the next six weeks. If you thought the Kavanaugh hearings were going to be brutal, just wait. It’s about to get worse. However, the Democrats and the media risk overplaying their hand, and in turn, helping President Trump get re-elected.

Democrats Argue Wrongly That the Biden Rule Applies

Over the weekend, Democrats argued that Republicans have a responsibility to wait for a nomination until after the election. They evoked what is commonly called “The Biden Rule.”

In 1992, the Senate had just voted to confirm Justice Clarence Thomas. The hearings were divisive and brutal. Then-Senator Joe Biden (D-DE) took to the Senate floor and said if a seat were to open on the court, then-President George H.W. Bush should wait until after the election for a nomination. Biden said the purpose was to allow the country to reevaluate the nomination and confirmation process. He said the political system had been overrun with bitterness, and healing needed to take place.

However, there are a few reasons why the “Biden Rule” doesn’t apply to this current situation:

  1. There were no openings on the court when Biden made the comment.
  2. It wasn’t a “rule,” it was a suggestion.
  3. Unlike Obama, Trump isn’t a lame-duck president. He’s running for re-election.
  4. Obama, a Democrat, was not in agreement on a selection with the Republican led-Senate. Trump and the Senate are in complete political alignment.
  5. The Constitution doesn’t say a president or the senate is only in power until the next election cycle starts. They serve full terms until the new Congress and presidents are sworn into office.

Would Democrats Wait?

If the shoe were on the other foot, would Democrats wait if there was a risk they couldn’t nominate a liberal justice in the mold of Ginsburg? Of course not. In 2016, Biden wrote in the New York Times that the Senate had a “Constitutional obligation” to vote on Obama’s nominee, Merrick Garland.

What changed?

It’s not a Democrat’s nominee this time. That’s the only thing that changed.

History Not on Democrats Side

Throughout American history, three Supreme Court justices were nominated and confirmed within a 45-day window. One of them was Ginsburg. She was nominated by then-President Bill Clinton (D) and confirmed by a Democratic-led Senate.

There is no reason for Senate Majority Leader Mitch McConnell (R-KY) not to call for the hearings to confirm a new Supreme Court Justice. There is a Republican Senate and a Republican president. Likewise, no rule in 2016 said the majority leader had to confirm the Democratic president’s nominee before a Republican-led senate.

Will the Nomination Hurt Democrats?

Rules and the Constitution aside, this is political theater. Will the nomination process help or hurt Trump or Biden?

There’s a lot that can happen. If Trump nominates a woman of faith, as he’s expected to do, it could put Democrats on their heels. If they come out as strong as they did against Kavanaugh, it could backfire. If they make a slip-up and say something polarizing, it could help Trump and Republicans.

If they keep saying they will stack the Supreme Court with more seats and confirm lots of liberal justices, that could backfire on them as well. Pelosi is already on record saying impeachment is on the table again in order to stall the nomination process.

The political battles are just beginning. Democratic voters are dug in, and so are Republicans. The question is, how will the process impact the votes of independents or Democrats who feel the party is moving too far left and is abandoning them?

Stay tuned for analysis ahead of the nomination and confirmation process and what it could mean for the 2020 election.

By Don Purdum, Freelance Contributor

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