Hysterical Precedent and the Supreme Court - The American Spectator | USA News and Politics
Hysterical Precedent and the Supreme Court
President Trump paying respects to Justice Ginsburg at the Supreme Court, Sept. 24, 2020 (YouTube screenshot)

When President Trump announced his intention to quickly nominate a successor to Supreme Court Justice Ruth Bader Ginsburg and requested an expeditious confirmation vote in the Senate, the Democrats responded with predictable hysteria. They loudly protested Trump’s alleged violation of historical precedent and all but pronounced the republic dead if the GOP Senate supports his pernicious plot. Democratic presidential candidate Joe Biden brayed, “That’s the cycle Republican senators will continue to perpetuate if they go down this dangerous path … a constitutional crisis that plunges us deeper into the abyss.” In reality, neither prompt nominations nor quick confirmations are unprecedented or even unusual.

For all their caterwauling about precedent, the Democrats are already threatening to destroy the democratic “norms” they claim to cherish.

The first woman to sit on the Supreme Court, Justice Sandra Day O’Connor, was nominated by President Ronald Reagan on August 19, 1981, and confirmed by the Senate 33 days later. The second woman to sit on the Court, Justice Ginsburg, was nominated by President Bill Clinton June 22, 1993, and confirmed 42 days later. And these are by no means the fastest Senate confirmation votes on record. As Thomas Jipping of the Heritage Foundation points out, “The Senate confirmed James Byrnes in 1941 on the same day that President Franklin Roosevelt nominated him. Four years later, Roosevelt’s nomination of Harold Burton languished longer (for a single day).” In fact, dozens of Supreme Court nominees have been confirmed within 30 days of their nominations.

Nor is there any rational basis for the claim that Trump is violating historical precedent by nominating Ginsburg’s successor so near the end of his first term with no assurance that he will be reelected. University of Virginia’s Professor Barbara A. Perry has pointed out in the Washington Post, six lame duck presidents (Harrison, Hayes, Tyler, Van Buren, Jackson, and Adams) nominated justices shortly before leaving office. Note that this list includes the father of the Democratic Party, Andrew Jackson, who nominated two justices on his last full day in office, including one John Catron (no relation), who served 28 years. In addition to the “hasty confirmation” and “lame duck” talking points, the Democrats have resorted to this kind of balderdash from Joe Biden:

To jam this nomination through the Senate is just an exercise in raw political power, and I don’t believe that the people of this nation will stand for it. President Trump has already made it clear, this is about power, pure and simple.… I appeal to those few Senate Republicans, the handful who really will decide what happens.… Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created.… If we go down this path, I predict it will cause irreversible damage. The infection this president has unleashed on our democracy can be fatal.

If Biden seems to be pleading, it isn’t an illusion. As the Wall Street Journal puts it, “Senate Democrats conceded they have few tools to slow a Republican push to confirm President Trump’s expected nominee to the Supreme Court this year.” Republican support has quickly consolidated around Trump’s position  on confirming his nominee to succeed Ginsburg. GOP senators whom the Democrats hoped would join them in their effort to derail the president’s  nominee — Utah’s Mitt Romney, Colorado’s Cory Gardner, Iowa’s Chuck Grassley, and Alaska’s Lisa Murkowski — have said they will support Trump’s nominee. The GOP Chairman of the Senate Judiciary Committee, South Carolina’s Lindsey Graham, explained exactly why in a letter to the Democrats:

After the treatment of Justice Kavanaugh I now have a different view of the judicial-confirmation process. Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito, and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear that there is one set of rules for a Republican president and one set of rules for a Democrat president.… I therefore think it is important that we proceed expeditiously to process any nomination made by President Trump to fill this vacancy. I am certain if the shoe were on the other foot, you would do the same.

Indeed they would. For all their caterwauling about precedent, the Democrats are already threatening to destroy the democratic “norms” they claim to cherish. If Trump and the Senate honor their obligation to fill the vacant Supreme Court seat with a jurist whose constitutional views conform to those of the framers, the Democrats will do everything in their power to wreck the checks and balances that have preserved our unique form of government. Thus, they can’t be trusted with power. They would create new states in order to seize permanent power in the Senate. They would pack the Court in order to keep originalists from insisting that the text of the Constitution means what it says. They would eagerly shred the social contract in the name of “social justice.”

This why they melted down when President Trump announced his intention to nominate an  originalist successor to Justice Ginsburg that he wants confirmed by Election Day. It is the hysterical precedent. They must respond to every promise fulfilled by the president, every achievement of the Republican Party as another dangerous step in the direction of autocracy. It is why the Democratic presidential candidate solemnly warns us that the mere nomination of a Supreme Court justice represents “a constitutional crisis that plunges us deeper into the abyss.” The proper response to such hysterical nonsense is to ask, “Who do you mean by ‘us’?” The answer, of course, is the Democratic Party. It isn’t democracy they’re worried about. It’s their moribund party.

David Catron
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David Catron is a recovering health care consultant and frequent contributor to The American Spectator. You can follow him on Twitter at @Catronicus.
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