Kontos Column: Civics 101 – Filling a SCOTUS vacancy, even in 2020

By Dan Kontos

It only took moments following the death of the legal titan, Supreme Court Justice Ruth Bader Ginsburg, before the bizarre politics of the day started to manifest itself. Of course, I had to watch. It’s kind of what I do.

However, I was dismayed, but not surprised, to listen to the near-hysterical commentaries, incorrect analysis, and flat out disinformation regarding the process of replacing Justice Ginsburg on the High Court. Granted filling this vacant seat has tremendous long-lasting implications, but we have gone beyond rational thought in many corners of our nation.

I surmised that a timely column was needed to cut through the noise and posturing. There are so many supposedly smart people saying so many un-smart things (I thought I would be charitable there, though grammatically flawed) that we need to set the record straight.

First, let’s frame the question. Should President Donald Trump nominate a new justice to SCOUTS? This is a fair question that we should be able to discuss rationally. The propriety, morality, and fairness of such an action can certainly be honestly debated from both sides. During previous administrations, I would argue that we could go through such an intellectual exercise. However, few seem to be in the mood to listen to the other side anymore.

Politics have turned into pure hardball, and rational discourse doesn’t seem possible at this point. So if that is true, the only real question isn’t whether the President should do anything, but rather can he make such a nomination. Does he have the constitutional authority to do this? The clear and unambiguous answer is, yes.

Article II, Section 2 of the Constitution says in part, “[The President]… by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court…” President Trump is still the president until January 20, 2021, so he retains the power. It is certainly black letter law. 

The only thing that stands in the way of this appointment is the Senate. They may choose to confirm or not, the latter by voting a nominee down or merely refusing to take up the matter. This simply means that a majority vote is the only thing required to approve the nominee, thanks to recent Senate decisions to eliminate judicial filibusters. There isn’t even any actual constitutional requirement to have a hearing on the matter, though I don’t anticipate a departure from this Senate rule that was established in 1868. 

So, Republicans can afford to have three of their Senators break ranks during a final vote, at which time if all of the Democrats vote no, the Senate would be tied 50-50. Then, Vice President Mike Pence would cast the deciding vote. That’s the simple political math for this issue, and we’re done, right?

Then why all the hysterics over the President’s ability to make a nomination? The answer is obvious; politics. It’s clear that the opponents are not arguing whether the President could, or really even should do this, but only what they personally desire as an outcome. The proponents are much more straightforward in their message, we can therefore we will.

What about history and precedent? The simple matter is that 29 Supreme Court justices were approved during the final year of a president’s term, starting with President George Washington. The last nomination, albeit unsuccessful, in a final year of a presidential term was President Barack Obama in 2016. The truth is that no president has ever failed to take advantage of such a situation when it was presented to them. Would you really expect otherwise?

You mean that there is hypocrisy in politics? Say it isn’t so. Well, sorry to tell you, it is replete with it. How about a couple of examples? 

Who was it that recently said the elected president this November should be the one to nominate the new justice? The same person who said back in 2016, “The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent,” in a New York Times op-ed in 2016, urging a vote on Judge Merrick Garland during that lame-duck nomination. He called failing to do so an “unprecedented act of obstruction.” The answer, Vice President Joe Biden. Huh, what changed? Trust me; he’s not the only one.

Good thing the Republicans don’t do that, right? No, no. Senate Majority Leader Mitch McConnell announced that President Obama’s 2016 nomination of Judge Garland would not even be considered. He said the next Supreme Court justice should be chosen by the next president — to be elected later that year. Now, he has already announced that the Senate will vote on a nomination from President Trump before the November election. It is a pure political power move. The Republicans have the votes, and that’s that. The problem? Senator McConnell recently had to invent some cockamamie story on how the rule only applies when the White House and Senate are of the same party in order to dodge the accusation of flip-flopping. Why can’t he just tell the truth? Ugh. Again, trust me; he’s not the only one.

What about the late Justice Ginsburg’s own last wishes? NPR reported that just days before her death, Ginsburg supposedly dictated a statement to her granddaughter Clara Spera, saying, “My most fervent wish is that I will not be replaced until a new president is installed,” but we’re offered absolutely no proof of this statement. I am skeptical, to say the least, as I am told that her last thoughts were of her judicial replacement and not her family. This would not be the first time that the national media has fabricated a story to further a political goal.

Well, even if it is true, it’s not her seat. It’s the people’s seat. The Constitution rules here, not last wishes. I personally prefer to rely on Ginsburg’s own words when she said the Senate had an obligation to hold a vote on the Supreme Court nomination of Garland. “That’s their job,” Ginsburg said. “There’s nothing in the Constitution that says the president stops being president in his last year.”

Now, with this fight upon us, watch for the threats, lies, character assassination, and mudslinging. It’s what some do lately when they disagree. This is especially true when we perceive ourselves as powerless to work within the system, the law, and the constitution. Burn it all down, blow up the system, plot revenge, and intimidate. That’s what some have substituted for rational discourse. Let the circus commence – one that seems to have many more clowns than in previous years.

Join me on Parler @”DanKontos” for some bare-knuckles political opinions, a bit of overly dry humor, and shades of columns to come. All opinions are truly welcome there. God bless.