So now there’s a fight over Justice Ruth Bader Ginsburg’s Supreme Court seat. Somehow I can’t get excited about it. The hysteria is probably misplaced. With the Senate in control by Republicans, Judge Amy Coney Barrett will be confirmed as the next Supreme Court justice. End of story.
About a year ago, Ken Johnston and I in a joint column discussed the future for Ginsberg’s court seat. At the time, because of Ginsburg’s ongoing health issues, the White House was in a death watch mode, preparing to name her successor. We both agreed then that if Ginsburg passed away while Trump was in office that Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit was the likely pick.
The woman is very accomplished. She was magna cum laude with a BA from Rhodes and a Phi Beta Kappa member. She then graduated summa cum laude from Notre Dame Law School, where she was executive editor of the Law Review. Thereafter, she clerked for Justice Antonin Scalia. With the Merrick Garland debacle, the major discussion in our column was timing. If Ginsburg died in 2020, would the GOP Senate allow whoever was elected president to choose Ginsburg’s successor, as they demanded with Garland?
Well, now that Ginsburg is dead, the GOP senators have spoken, reversing themselves from what they said back in 2016 when President Obama (10 months before the 2016 election) appointed Garland to the Supreme Court. GOP Senators objected to Garland’s appointment, saying this:
Sen. Lindsey Graham (R-S.C): “If an opening comes in the last year of President Trump’s term and the primary process has started, we’ll wait to the next election.”
Sen. Marco Rubio (R-Fla): “I don’t think we should be moving on a nominee in the last year of this president’s term — I would say that if it was a Republican president.”
Sen. Ron. Johnson (R-Wisc.): “I strongly agree that the American people should decide the future direction of the Supreme Court by their votes for president and the majority party in the U.S. Senate.’’
Sen. Pat Toomey (R-Penn): “The next court appointment should be made by the newly-elected president.”
Similar comments condemning the nomination of a Supreme Court Justice during the last year of a president’s term were voiced by Sens. Grassley, Ernst, Perdue, Portman and others.
OK. The GOP senators have not maintained honesty and kept their word. Surprised? Politics and hypocrisy go hand in hand. Out of fear of defiance they have sacrificed their credibility and integrity — for what?
They think that adding a conservative Catholic female on the Supreme Court is going to give its conservative views on abortion, global warming, guns, etc. an edge in the days and court decisions ahead. Roe v. Wade which has been around since 1973 will be overturned. Obamacare, another target they are unwilling to debate in Congress, will be done away with. They think that when 2020 fades away (for many it can’t come soon enough) and the court is stacked to their liking, that they will be responsible for great progress in conservative thought. They think they can achieve by judicial fiat policy goals they can’t achieve by democratic politics. Good luck with all of that. Public opinion and the people will always control. When you take a course in con law and look at past cases and decisions, judgments that carry weight politically tend to follow public opinion.
The fact that, with Barrett’s appointment, there will be six Catholics out of nine members on the court doesn’t matter, either. The Constitution provides that in assuming an office and taking an oath, to uphold the constitution, no religious test is required. Judge Barrett, when she was confirmed for the Court of Appeals, has already stated that a judge can never follow his or her personal convictions in deciding a litigant’s case.
Take the issue of abortion, which by the way is at its lowest rate since it became legal. According to Pew Research, 70 percent of Americans say Roe v. Wade should not be overturned. To be more specific, in a Gallup Poll, 20 percent believe that abortion should be illegal in all circumstances. Twenty-nine percent believe it should be legal in all circumstances. Fifty percent believe it should be legal under certain circumstances.
I would venture to say that the vast majority of senators in Congress have not read the actual opinion of Roe v. Wade. The subject of women and their rights is mostly absent from the opinion. The case was more about the rights of doctors who were facing criminal prosecution in many states in the USA for doing something they felt was in the best interests of their patients. Since that case, many state legislatures have enacted their own legislation relating to women’s rights and abortions. Ginsburg herself felt that the issue of abortion was one more appropriately decided by legislation as opposed to the Supreme Court.
My point in this article is that the GOP senators are expecting far too much to happen in the Supreme Court with Barrett’s appointment. Moreover, the one national issue more important than any other to Americans in 2020 in yet another poll, even ahead of jobs and the economy is honesty in government. On this subject, the senators shot themselves in the foot. For them, sadly, issues like public trust and faith in government are simply superfluous.