Monday, September 21, 2020

Part I

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An Explosive Political Battle: What Will Happen to the Seat on the Supreme Court Now Vacant After the Death of Justice Ruth Bader Ginsburg?

The death of Supreme Court Justice, Ruth Bader Ginsburg continues to dominate the headlines and understandably so. Her death on Friday night sets off one of the most interesting and eventually epic political battles in recent American history. In a special edition of The Briefing on Friday, I discussed at length the life and legacy of Justice Ruth Bader Ginsburg. By the time we come to this morning and the headline swirling about the nation, most of them have already jumped to the inevitable political question. And that is, what will happen to the seat now vacant due to the death of Justice Ginsburg?

Now, on the one hand, this represents something of a hastening of the political process. But on the other hand, there is absolutely no way around it. Both sides will see to that we are right now in the midst of a fever pitch presidential campaign. And we knew already that the future of the Supreme Court of the United States for a generation or more was at stake. It is almost as if this is something that comes out of a Hollywood epic. We’re looking at so many different, huge issues arriving at the same time. But for Republicans, for conservatives in the United States, for conservative Christians who’ve been so concerned urgently so about the Supreme Court for a matter of a half century and more, we now face a stewardship that simply can’t be missed.

Now, the reason for that explains a little bit of historical context. When you look at the Supreme Court and the nine seats on the Supreme Court of chief justice and eight associate justices of the United States’ Supreme Court, every one of those justices appointed to a life term, you are looking at the fact that for the last 50 to 60 years, there has been a very deep divide. Now, that divide’s older than that in one sense, but there has been no denying it for the last half century. You’re looking at two different ways of understanding the constitution. You’re looking at two different kinds of judges who end up sitting on the nation’s highest court. You’re looking at two different visions of text, even of reality of the future of the United States.

On an issue like abortion, you’re looking at the fact that there are some judges who look to the constitution and rightly say, “There is no reference here to abortion whatsoever, much less to any kind of constitutional right to an abortion.” On the other hand, you have justices who have been winning the case in so many cases, going back to Roe v. Wade in 1973 arguing that it is proper now to see the constitution as a living document in which rights can be found, basically newly invented that the nation’s just going to have to live with. And thus the cultural left and the cultural right have been deeply divided over the Supreme Court. But when it comes to those particular seats, only rarely has there been an opportunity for a president to nominate a justice that would fundamentally change the composition of the court.

Right now, if President Donald Trump, a Republican president nominates a conservative justice to the Supreme Court who is confirmed by the president Republican majority in the United States Senate, that will mean a conservative justice sitting where a liberal justice had sat for three decades almost. And so you’re looking at a fundamental change in the court, and both sides understand it. That’s why Democrats and liberals are so upset. And that is why conservatives and Republicans see an opportunity they cannot in the face of history and in the face of Republican voters fail to fulfill. After the initial shock of the weekend, it’s really interesting to see where the nation’s cultural conversation is turning.

For example, Linda Hirshman wrote an article published in The Washington Post with the headline, “Ruth Bader Ginsburg Had a Vision for America. Her Colleagues Thwarted It.” Hirshman argues that as you look to Ruth Bader Ginsburg, you see a justice who had such a progressivist liberal vision for America, it could only be thwarted by those on her own side, that is on her own team, so to speak. Fellow Democratic nominees to the court who would fail to move in the kind of direction that she had hoped for. Linda Hirshman, again, writing from the left, celebrating Justice Ginsburg’s support for abortion, same sex marriage. Remember she was the first Supreme Court Justice to officiate at a same-sex union. She went on to ask this question, “Why didn’t she step down while Barack Obama had the power to replace her?”

Now, that’s a huge question. And frankly, it’s really interesting to note how many liberals have been asking that question as the Obama administration came to an end. There was a lot of pressure, you may remember, put upon Ruth Bader Ginsburg–back then she was 83 years old–to retire from the court and allow Barack Obama, a Democratic president to appoint her successor. She seemed to be offended by that notion. She said that she wasn’t going to do it. Then Hirshman goes on to explain that the reason why Ruth Bader Ginsburg didn’t retire so that Barack Obama could appoint her successor is that she wanted a woman president to appoint her successor. And she thought that Hillary Clinton, the 2016 Democratic nominee was going to be elected president.

Of course, that didn’t happen. And thus Ruth Bader Ginsburg wanted to do anything she possibly could to avoid President Donald Trump naming her successor. But Linda Hirshman offers even more to color in the picture a bit telling us that even though Ginsburg didn’t admit it: “We knew she was waiting for Hillary Clinton to replace Justice Antonin Scalia with a liberal, somebody with a stiffer spine for progressive battles than the one Obama had shown. Had there been five liberals after 2016,” Hirshman explains, “She would have been the senior liberal in the majority and able to assign all the liberal decisions. She would have been the closest thing to the chief justice on a liberal court.”

Now, just notice something, here you have a liberal admission of what would have happened had Hillary Clinton been elected president of the United States in 2016. We would be looking at a liberal court. It’s also important to recognize that justices on the Supreme Court and federal judges in general, do get to decide when they will retire. They are appointed to a life term, which means their term can’t be ended by someone else, but they’re not appointed to a life Senate. They do not have to stay on the court until they die. So even the decision about retirement turns out to be a very important issue for justices and a very politically relevant issue.

Also, writing in The Washington post, Robert Barnes offers an article with the headline, “Ginsburg’s Death Sets Off Political Battle Over Her Replacement, Supreme Court’s Future.” Again, that’s just very clear. The New York Times had an article by Michelle Goldberg with the headline asking the question, “Can Mitch McConnell Be Stopped?” The subhead in the article, “If Republicans Give Ruth Bader Ginsburg’s Seat to Some Federalist Society Fanatic, Democrats Should Pack the Court.” Oh, now we’re into something really interesting. Notice the fact that a member of the Federalist Society is here defined as a fanatic.

Now, folks, this is where we are as a country. The left has been in control of the Supreme Court for so long, the left is in absolute panic over the idea that there might be a stable conservative majority in a future court. Now the federalist society is made up largely of law school students and graduates who are now involved in the law as attorneys or as judges, law professors also, who are committed to a strict constructionist and originalist or textualist interpretation of the constitution. Now, in any previous century in American history, you wouldn’t have had to use those terms because it would have meant reading the constitution as the constitution, reading it in terms of its words and sentences and the intention of the original authors.

But nowadays this is up against the liberal progressivist understanding of the constitution as a living document in which judges can effectively make it say whatever they want it to say. That’s the deep divide between the right and the left on the nation’s highest court. But there’s something more here. It’s a threat, the threat in the subhead of this New York Times article is that if Republicans should successfully confirm any kind of conservative to that seat, then Democrats in response need to pack the court. Now, it’s not just the New York Times and Michelle Goldberg. An even more interesting article making the same point appeared across the nation in the Los Angeles Times by Erwin Chemerinsky.

Now, he’s not just a writer for the Los Angeles Times; Erwin Chemerinsky is one of the most influential liberal legal scholars in the United States. He is professor of law and dean of the School of Law at the University of California at Berkeley. So we’re talking about the epicenter of ideological liberalism in the United States for a matter of well over a generation. Erwin Chemerinsky runs an article with the headline, “Democrats Have a Secret Weapon to Thwart a Rapid Ginsburg Replacement. They Should Use It.” Now, what is he talking about? He’s talking about this threat to pack the court. He goes on to say that if Republicans should put a conservative in place in Ginsburg’s seat, notice by the way, we shouldn’t even speak that way, actually, it’s a seat on the Supreme Court.

But to the left, it’s Ginsburg’s seat. Then as Chemerinsky writes, “One way for Democrats to make clear that they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices.” Notice that, they’re threatening–and here you have both the Los Angeles Times and the New York Times running the article–they’re threatening to pack the court, to expand the number of seats on the court, in this case, to 13. Why the magic number 13? Because this would be four additional seats, meaning that if a Democratic president made those nominations and a Democratic Senate confirmed them, there would be an overwhelming, indeed, nearly invincible liberal majority on the court.

Part II

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A Serious Threat to the Constitutional Order: What Does “Court Packing” Mean?

Now, where does court packing come from? Well, actually the phrase goes back to President Franklin Delano Roosevelt. Not that he used it, it was used of him. President Roosevelt sought to expand the number of seats on the Supreme Court because he was frustrated that the court then was not moving fast enough to allow his new deal legislation to go through. And thus, he made the effort to expand the number of seats in the court so that he could appoint the justices to those new seats who would move the court along. Effectively, if he couldn’t persuade the judges, he would just add new judges. But Franklin Delano Roosevelt as powerful as he was–remember that he won four successive elections as president of the United States–he couldn’t pull that off.

But going back to FDR, liberals have threatened to pack the court with their own like-minded justices for decades now. And even in the course of the 2020 presidential election, this threat has already come from the Democratic side and has come repeatedly. For example, one of their candidates for the 2020 presidential nomination, former South Bend, Indiana mayor, Pete Buttigieg actually ran in part on a plan to expand the number of seats on the Supreme Court. But what we’re witnessing here is basically a threat to the constitutional order. And that was understood even by Franklin Delano Roosevelt’s own party back during the time of the Roosevelt administration and its effort to pack the court, because it comes down to this.

Let’s just say that Republicans are able to nominate and confirm a conservative justice before the election day. Then the Democrats win the White House and the Senate according to this plan. And they say they are now going to end the filibuster in the Senate and they’re going to pack the court. They’re going to increase the court to 13 seats. Well, let’s just say that a cycle or two after that, Republicans win both the White House and the Senate. And they say, “We can do that even better, but in order to pack the court, we’re going to need to pack it in a big way. So we will pack the court by establishing, say 25 seats on the United States’ Supreme Court.”

What we’re looking at here of course, is a form of constitutional insanity. You can’t talk about the Supreme Court as the least dangerous and least political branch of the federal government and then make it that overtly political. And it is the left that bears responsibility for politicizing the Supreme Court, turning it into an engine for legislation that the left could never have won the honest way, that is through legislation. That would have to be adopted by the House of Representatives and the Senate, and then signed by a president. Whether it comes to abortion or same sex marriage, just note, so many of these things came along and they are now considered the law of the land. Not because Congress passed any law whatsoever, but because the Supreme Court of the United States arrogated that responsibility unto itself, becoming effectively a second legislative branch.

Legislation is political. The judiciary is not to be political. When judges take on the legislative function, they transform themselves into politicians. Also stepping back to look a bit at the coverage in the mainstream media and in the national conversation, you see that basic worldview divide in this country represented by how representative people in the United States saw Ruth Bader Ginsburg as a Supreme Court Justice, either she was a heroin or she was a formidable foe. There’s really no middle ground. And Ruth Bader Ginsburg understood that. To the legions of her fans, she was, as she enjoyed being called, the Notorious RBG, named after a rapper. To conservatives in the United States, she was indeed a formidable foe, but she was also an honest foe and she deserves that recognition.

She said exactly what she would do. She never hid her constitutional philosophy. She made all of that clear. And there was really no way to escape it anyway because she had been before the nation’s highest court, six times as a litigator, as an attorney pleading her case, most importantly, for the ACLU and feminist causes in the decades previous to her nomination first to the DC Circuit Court of Appeals and then to the Supreme Court. But as you’re looking at this national conversation and you hear the panic, especially on the cultural left, just understand that that panic is coming from these two facts. Number one, they have gained so many of what they see as their most precious gains by the court because they couldn’t get it through the Congress.

And then secondly, they see an inevitability to history moving in a leftist direction. It is incomprehensible to the left in this country, and this is at least somewhat rooted in a certain kind of philosophy that goes all the way back to Hegelianism, that is G. F. W. Hegel, the German philosopher after the Enlightenment. But it also goes back to Marxism with the idea of an unfolding progress to the left. This is again a matter of honesty. Most of those, especially in the ideological wing of the left, honestly believe and millions of millions of people who’d never define it this way agree with him, the history has to bend in a liberal direction. If there is any kind of conservative turn, it is understood to be an aberration that must be overcome as quickly as possible. It cannot possibly point the nation in the right direction.

Part III

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Who Are the Three Judges President Trump Is Reportedly Considering for Nomination to the Supreme Court?

But next we need to move to the fact that already sources close to the Trump administration have indicated three potential candidates for nomination to this seat on the United States’ Supreme Court. Now, there’s nothing sure in this except the president himself has said that he will appoint a woman to fill this seat. But it’s really important to know this isn’t coming out of a vacuum, the White House and Republicans in the Senate, the Federalist Society and others nationwide on the conservative side have been carefully thinking about potential nominees to the court. And remember, in 2016, and then again, just a matter of weeks ago, President Trump, first as nominee, and now as president running for reelection has offered a list of the kind of justices that he would name to the Supreme Court.

Three women judges, all appointed by President Donald Trump to US Circuit Courts of Appeal, and all three of them clearly conservative are Judge Amy Coney Barrett of the Seventh Circuit, Judge Barbara Lagoa of the Eleventh Circuit, and Judge Allison Jones Rushing of the Fourth Circuit. Now, the eventual nominee may be one of these or none of these, but these names are coming from authoritative sources. Amy Coney Barrett is a graduate of the University of Notre Dame and the University of Notre Dame Law School. And she taught on that law school faculty for about a quarter century. She was then appointed to the Seventh Circuit by President Donald Trump. And she was considered Supreme Court material from the start.

Many thought that President Trump would appoint her to the seat he eventually filled with Justice Brett Kavanaugh, thus her name rather skyrockets to the top of any consideration, especially after the president has said that he would appoint a woman. Judge Amy Coney Barrett is an originalist. She had served as a clerk for the late Justice Antonin Scalia. Her conservative understanding of the constitution is extremely clear. She is not only a Roman Catholic, she is a very well known Roman Catholic thinker, and she’s been involved in circles of Roman Catholic intellectuals and other conservatives thinking through the method of interpreting the constitution and other issues, including the Roman Catholic affirmation of the sanctity of human life.

And Barrett is not only a judge there on the Seventh Circuit, she is also the mother of seven children. Constitutional conservatives in the United States know her and trust her, and many are hoping that she will indeed be President Trump’s appointment to this seat and expeditiously so. If so, you can expect a big battle because even as Amy Coney Barrett was facing her confirmation hearings for the Seventh Circuit, there were members of the United States Senate who spoke disparagingly of her theological commitments. One then US Senator saying that she could perceive that “the dogma dwells deep within” her. That’s very ominous language for anyone who honors religious liberty, expect that to be a big fight.

Judge Barbara Lagoa comes from Florida. She is the child, the only child of Cuban immigrants who came to the United States shortly after the revolution that brought Fidel Castro to power in Cuba. She is a graduate of Florida International University. Then she went to Columbia University for her law degree. She was appointed to the Florida courts where she served for a number of years. And then eventually she was appointed just recently by Florida Governor, Ron DeSantis, to the Florida Supreme Court. It’s from that court that President Trump nominated her to the Eleventh Circuit. She has also made her conservative reading of the constitution clear. And I spoke with legal authorities there in Florida who know Judge Lagoa well, who spoke very clearly of her conservative convictions and understanding of the United States’ Constitution.

The third judge now often mentioned is Judge Allison Jones Rushing, who sits on the Fourth Circuit Court of Appeals. And Judge Rushing is also, like the other two, a judge appointed to the Circuit by president Donald Trump. So each one of them has already been appointed by Donald Trump. And all three of them, by the way, are on the list, especially the updated list that President Trump had issued just a matter of a few weeks ago. Judges Barret and Lagoa are both Roman Catholic. Judge Rushing is an evangelical Christian. She did her undergraduate degree at Wake Forest University, and then her law degree at Duke University. She has also served in coordination with the Alliance Defending Freedom, one of the most important legal works in the United States in defense of religious liberty and religious freedom.

But one point you just have to keep in mind is that President Trump’s nomination of any one of these three women to the seat is going to set up a political battle royal, and it’s going to land right in the middle of the 2020 presidential election campaign. There’s something refreshing about this list of these three potential justices just in mentioning their degrees. Again, Notre Dame, Notre Dame, Florida International University, Columbia University, Wake Forest University, Duke University, what’s my point? Except for that one law degree from Columbia University, these are all non-Ivy League institutions. Right now the Supreme Court of the United States fails to represent the people of the United States because virtually every single one of them is entirely an Ivy League product.

And that means that they have been inculcated in a cultural bubble that’s not only very liberal and very elite, and there’s a place for elites in culture, but those elites are also distanced from the American people, and it’s the American people they are called to serve. It would be refreshing to have a number of nominees to the nation’s highest court who did not come from these Ivy League law schools. And in particular two, that would be Harvard and Yale. But that diversity of legal background, and just imagine, I just mentioned the fact that Judge Lagoa graduated from Florida International University, the daughter of Cuban immigrants who fled communist depression coming to the United States.

Then you have the Roman Catholic professor who taught at the University of Notre Dame Law School. And then you have the evangelical Christian who worked with the Alliance Defending Freedom. The point is this, we are likely to be looking at history made right before our eyes and in our own lifetimes in coming days. And the stakes really could not be higher. The reason why the left and the right in this country both understand the importance of this moment is that both understand the importance of the Supreme Court of the United States. And that means both understand how important it is to elect a president on the 3rd of November, who will make the kinds of appointments that will help the Supreme Court of the United States to serve the American people for generations to come.

A court that will not only rule in the name of the constitution, but will rule constitutionally. A court that will respect and uphold every single right found in the US constitution, but not a court that will invent new rights with judges effectively making the constitution say whatever it is they want it to say. We’ll be considering all of this on The Briefing in coming days, but buckle your seat belts, it’s about to be a wild ride.