On Sept. 24, the United States Supreme Court will celebrate 231 years of existence. As a birthday present, it will get the American left arguing over the myriad ways President Trump putting forth any nomination to fill Ruth Bader Ginsburg’s Supreme Court seat will destroy 231 years of precedent.
The Republicans said back in 2016 that the president shouldn’t put forth a Supreme Court nominee in an election year! (Not really.)
If he does this, Democrats will be forced to abolish the filibuster and pack the court when they get the opportunity. (However, they’re certainly not forced to do anything of the sort, and this sounds like a them problem, not a GOP problem.)
And then there’s the argument that President Donald Trump and the GOP simply don’t have the time to confirm a nominee.
Justice Ginsburg’s last known statement on the matter was that her “most fervent wish is that I will not be replaced until a new president is installed.” This assumed that a Democrat win in November would be a fait accompli — and, indeed, the left seems to believe that too, in addition to their retaking the Senate. That’s why you have Democrats like Sen. Edward Markey of Massachusetts saying that if Trump nominates a justice, Democrats will eliminate the filibuster and pack the court.
The reasoning isn’t just that a Republican president is nominating a justice as the election rages on; it’s that it’s so close to the election. After all, there’s a month and a half to the first Tuesday in November and less than four months until the term Trump’s won in 2016 is over.
So that period of time should disqualify him from picking a nominee, right? Not if you take the last 45 years of precedent into account.
In a Twitter post, Matt Batzel, executive director of the conservative group American Majority, pointed out how long it took to confirm the last batch of Supreme Court justices going back to the Ford administration:
Yes, Trump has time to nominate and get his nominee confirmed to the Supreme Court. EVERY SINGLE VOTE ON A #SCOTUS NOMINEE OF THE LAST 45 YEARS was voted on in less time than what Trump has between now and the end of his current term. pic.twitter.com/og5aOZsiw1
— Matt Batzel (@MattBatzel) September 19, 2020
This goes back to John Paul Stevens, who served on the court from 1975 until his retirement in 2010. Despite being nominated by a Republican president and submitted to a Democratic Senate one year post-Watergate, Stevens was confirmed in 19 days.
Perhaps the Democrats knew something about Stephens, since The New York Times wrote in his 2019 obituary that his “35 years on the United States Supreme Court transformed him, improbably, from a Republican antitrust lawyer into the outspoken leader of the court’s liberal wing.”
Sandra Day O’Connor was next; submitted by a Republican president to a Republican Senate, she took 33 days to confirm. Antonin Scalia took longer to confirm to the court, if just because of a controversy regarding William Rehnquist’s elevation to chief justice involving a property he owned that included a (by then legally unenforceable) covenant in its deed barring its sale to Jewish individuals.
After Scalia and Rehnquist’s nominations, the nominations for confirmed justices ranged from 42 days for Ruth Bader Ginsburg in 1993 to 99 days for Clarence Thomas’ acrimonious nomination battle in 1991. All of those are well within the 105 days left until a new Congress is sworn in on Jan. 3.
(It’s not on Batzel’s list, but the most recent Supreme Court nominee’s confirmation, that of now-Justice Brett Kavanaugh, was 89 days, though it felt like an eternity for the country — and no doubt eternal torment for Kavanaugh himself.)
Only one battle took longer than the time left until the next inauguration day, meanwhile — the unsuccessful nomination of Robert Bork, who was shot down by Democrats who painted him as an extremist. Even that took only 108 days. Meanwhile, the longest it took to confirm any justice not named Brett Kavanaugh with the White House and Senate controlled by the same party was Samuel Alito in 2006 at 82 days. As with Bork, Democrats were again determined to paint him as an extremist, particularly in the wake of Harriet Miers’ unsuccessful nomination.
In an appearance on Breitbart News Tonight shortly after Ginsburg’s death was announced on Friday, Tennessee GOP Sen. Marsha Blackburn noted the precedent for confirming a justice before Election Day, as ell.
“Bear in mind,” Blackburn said, “John Paul Stevens was confirmed in 19 days. Sandra Day O’Connor was confirmed in 33 days. Justice Ginsburg was confirmed in 42 days. So that gives you an idea that even though it typically takes about 60 days to confirm a justice, there is precedent for doing it in a shorter period of time.”
There was another reason for President Trump to submit a nomination, too: It’s an issue that gets the conservative base out to the polls.
“This is something that energizes support for the president because people do not want activist judges on the court,” Blackburn said.
“They do not want judges who are going to legislate from the bench. What they want are judges who will abide by the rule of law … and that I fully believe is going to resonate with a lot of people. This is something that is going to cause people to think, ‘I’ll go vote for Donald Trump’ because the courts are important.”
Democrats aren’t just afraid there’ll be another Republican-appointed justice on the bench, mind you. They’re afraid the issue could galvanize conservatives to put Donald Trump and the GOP in a position to nominate a few more judges to the bench.
If he wins in November, he’s going to have plenty of time to do that.
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