Will Trump Nominate a Far Right Ideologue to Replace RBG? Will the Republican Senators Confirm the Nominee? How Should President Biden Respond?

On Thursday, September 17^th, the National Constitution Center presented the Liberty Medal to Supreme Court Associate Justice Ruth Bader Ginsburg, “for her efforts to advance liberty and equality for all.” (Watch the ceremony here).

The next day, Friday evening, for many of us during Rosh Hashanah services, we learned of the passing of Justice Ginsburg.

Six years ago I had the great pleasure of listening to Justice Ginsburg at the New York Historical Society (Listen to her comments here – about an hour).

Ruth Bader was a Brooklyn girl, a graduate of James Madison High School, the school at which I taught for over three decades. Madison has a Law Institute, lawyers work with the students on projects, the students visit the courts, and, each year Justice Ginsburg hosted a visit from students at the Supreme Court. She impacted the lives of untold numbers of students.

Within hours of her passing Mitch McConnell, the majority leader of the Senate announced he would bring the president’s nominee before the Senate for a confirmation vote. Four years ago President Obama nominated Judge Garland eight months before the presidential election and McConnell and many Republicans jumped to support their leader. Republican after Republican explained why the next president should have the opportunity to fill Supreme Court vacancies, not President Obama.

What has changed?  Nothing, except that venality and moral corruption has become the currency of the day.

Kamala Harris responded to McConnell.

“Mitch McConnell wasted no time declaring he would bring Trump’s appointee to a vote on the Senate floor, where he holds a Republican majority. And there is no doubt in my mind that Donald Trump will nominate someone who will overturn the Affordable Care Act, strip protections from immigrants, overturn Roe v. Wade, and more.”

We can expect the President to nominate a justice, perhaps at Judge Ginsburg’s funeral, and we can expect a far right ideologue..

The favorite is forty-eight year old Judge Amy Coney Barrett, currently a Trump appointee to the 7^th Circuit Court of Appeals. At her confirmation hearing she defined herself as an “originalist;” in other words, forget about precedent, the long established practice of honoring previous decisions of the court; the founding fathers are still speaking to her.  (Read more details about Barrett here)

McConnell and his co-conspirators are packing the courts with ideologues to use the courts to legislate, use the courts to bypass the legislative process.

Garrett Epps in the Washington Monthly writes,

The passing of Justice Ruth Bader-Ginsburg has left a deep hole in the hearts of millions across the country. She was a giant of jurisprudence, one of the most consequential Americans to have ever lived, and an inspiration to so many for her intellect, her moral center, her trailblazing biography, her resilience and even her physical toughness.

But her passing also leaves a bleeding wound in American democracy, one that reinforces the crisis of legitimacy of conservative minority rule in America. It is a legitimacy crisis that Democrats must heal and rectify should they win power in November–especially if Republicans are shameless enough to force through a conservative to replace Bader-Ginsburg before the inauguration of the next president, against her dying wish. Democrats must, if they win, alter the composition of the Senate and the Court so that both reflect the will of the majority rather than the tyranny of a minority.

Is it possible that Republican Senators will honor their commitment to allow the new president to fill Supreme Court vacancies?  Four Republican senators will have to refuse to take part in the charade; Senator Collins of Maine has already announced she will not support a presidential nominee at this time. Are there three other Republicans?

To quote Joseph Welsh at the McCarthy Hearing, “Have you no sense of decency?” (Watch here)

The Constitution establishes the “supreme court, and, inferior courts as the Congress may from time to time ordain and establish.”

Article III, Section 1

The judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The size of court, the organization of the courts, the duties of the courts all fall under the Congress.

In 1937 President Roosevelt threatened to “pack the court,” to appoint additional justices, read about the Judicial Procedures Reform Bill of 1937 here

Listen to FDR justify his proposal here during a Fireside Chat on court reform

The conservative wing of the court had ruled a number of New Deal laws unconstitutional; when FDR threatened to appoint additional justices the conservative wing of the court backed away and the bill never became law.

I would urge a Biden presidency with a Democratic controlled Congress to introduce the Judicial Reform Bill of 2021.

There are currently thirteen judicial districts, courts of appeal, the highest level of courts below the Supreme Court; the districts, sometimes referred to as circuits, have widely varying populations; for example, the Ninth Circuit; which includes California has 20% of the nation’s population.

I suggest:

The thirteen judicial districts shall be reconfigured to more accurately represent the population of the nation, and, expand the Supreme Court from the current nine to thirteen members, each new justice selected from among sitting judges in the circuit, each future vacancy shall be filled in that manner.

President Biden would upon passage of the legislation appoint four new Supreme Court justices.

The Federalist Society, a right wing think tank, supported by wealthy elites,

… the Lynde and Harry Bradley Foundation, a right-wing trust, gave over $3 million to the FederalistSociety. Koch Industries, several other Koch-network foundations and trusts, and nearly a dozen wholly anonymous donors have given over $100,000 each to the Federalist Society

and fast tracks “issue cases” through the courts.

Issue cases might be challenging gun control (Second Amendment) legislation, using the First Amendment to allow unlimited, unregulated anonymous contributions to political campaigns, recently ruling that all union actions are “free speech” therefore any employees can continue to receive all union negotiated benefits and opt out of “fair share” payments to support union functions. A number of anti-abortion cases are moving towards the Supreme Court. None of these issues would be supported by the Congress.

A Biden victory and control of both houses of the Congress will reverse the current assault on our democracy.

What do Trump rallies remind you of ….?