What you need to know about the SCOTUS vacancy

Supreme Court Justice Ruth Bader Ginsburg passed away late last week. Justice Ginsburg was a legal legend––the second woman on the Supreme Court and well known for her commitment to her principles. Her legacy will be and should be honored––if the memorial can be seen through the political whirlwind. 

Here’s the situation: Now, with a vacant seat on the Supreme Court, Republicans will nominate and confirm a Supreme Court Justice this fall, likely before Election Day, but it could occur after. This vacancy might have occurred during President Barack Obama's second term––there was widespread discussion at the time Ginsburg should step aside to allow a younger, equally progressive Justice to take her place. She refused to resign, citing she would like her replacement to be appointed by the first female U.S. President.

Well. With a Republican President and a firm Republican U.S. Senate, the GOP has almost carte blanche with any decent conservative nominee. Recent news show enough GOP Senators will support a nominee to guarantee a minimum of 50 votes (Vice President breaks ties). 

Using the judicial branch to legislate is a common (and successful) strategy for progressives. Not only are they losing a legend and prominent figure in Ginsburg, they are losing an ability to gain a future SCOTUS majority. The confirmation of a new Justice will grow the conservative SCOTUS majority from 5-4 to 6-3. The two recent conservative Justice nominees were in their late 40’s/early 50’s at time of appointment––the future nominee will likely be around the same. When the job is for life, appointment age matters.

Democrats and progressives see political checkmate looming with no room to escape. They understand many liberal hot-button issues, primarily abortion and LGBTQ issues, rely on Supreme Court precedent as it stands today. Even Obamacare hangs in the balance––the case to protect the health care program is scheduled to begin in November. Major decisions on religious liberty, free speech, and more will surely rely on a crucial Supreme Court decision in the future. 

Seeing the inevitability of losing the Supreme Court for likely a very long time, progressives are scrambling. It appears they are actualizing a quote from fictional Democrat President Frank Underwood: "if you don’t like how the table is set, turn over the table."

Almost immediately after Ginsburg’s death, the table-flipping options began to appear in news reports to: nominate multiple (4 or 5) SCOTUS nominees during the next Democrat regime; add U.S. states, or divide current ones, to increase Democrat seats in the U.S. Senate; impeach and remove a Justice (or the President again). These options, particularly the first, found support with various prominent Democratic elected officials––House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer included. 

All or none of these drastic measures could be taken. Already we've seen the immediate response is negative messaging to the American public by discrediting the process and, eventually, disparaging the nominee. If what occurred in 2018 to Justice Brett Kavanaugh is any indication, Democrats (and a complicit media) will slander the nominee’s character in a despicable fashion. But first, the attack on the Supreme Court process.

The charge: "GOP hypocrisy", citing the “McConnell Rule” from 2016. The “McConnell Rule” refers to U.S. Senator Mitch McConnell, a strong Majority Leader of the U.S. Senate––the same job he had in 2016. In the spring of 2016, the late (and great) Justice Antonin Scalia passed away, causing then-President Obama to nominate Merrick Garland to fill the vacancy. Sen. McConnell refused to begin the confirmation process for Garland, his reasoning simple: given the split nature of the Democrat White House and GOP Senate, the American people should decide this nominee by proxy in the 2016 general election. 

That’s the “McConnell Rule” – when the White House and Senate are split between opposing parties, the election should decide. Obviously, given the White House and Senate are controlled by the same party, the “Rule” does not apply today. Indeed, in 2018 voters further endorsed Republican judicial appointments by increasing their Senate majority from 51 to 53 seats. 

What really matters though, is not some politician’s self-imposed rule––it’s the U.S. Constitution. The document clearly outlines the process of selecting a Supreme Court Justice: “The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court” (Article II, Section 2). Upcoming election aside, the President has the opportunity to nominate, and Senate confirm, a new Justice. 

Regardless, historical precedence is on the Republican side. An almost prophetic article from National Review last month found 29 times there has been a Supreme Court vacancy in an election year; a President made a nomination all 29 times. Of the 19 times the White House and Senate were controlled by the same party, the nominee was confirmed 17 times. 

A nomination, and confirmation, of a new Justice to the Supreme Court is happening and happening fast. So buckle up, know the facts. U.S. politics could get a whole lot uglier very soon.