Everyone else is talking about it, so I guess I should too. The death of US Supreme Court Justice Ruth Bader Ginsburg could not have come at a more inopportune time. I was so hoping that she could have held on for a whi le longer, preferably a long time longer, because she was a giant of US lawmaking, and a voice of reason in an institution that has often demonstrated a complete lack of empathy and appreciation of how the world really works.
But, with just a month and a half remaining in Donald Trump's lame duck administration, RBG's untimely death has thrust America into a maelstrom of political intrigue and moral ambiguity. Conservative voices in the Supreme Court already out-number liberal ones by 5-3 (in the absence of RBG), and a new conservative appointment by Trump would tilt the balance into a unprecedented 6-3 right-wing bias, probably for the best part of a generation, putting many heretofore sacrosanct legal rulings in some jeopardy. 3 of the 6 Republican judges would have been appointed by Trump in just one term.
Because, make no mistake about it, the US Supreme Court is a political institution first, and a legal one only a distant second, and its ability to constrain some of the more egregious actions of presidents and Congresses is almost wholly dependent on its political leanings, leanings that have become much more partisan and extreme over time. And only in America do nine unelected and unaccountable individuals have such awesome power; there is nothing like it in Canada, Britain, France, Russia, even North Korea.
When Justice Antonin Scalia died in March 2016, then President Barack Obama was technically within his rights to appoint his own choice of replacement, but the Republican-controlled Senate, led at that time, as now, by the weaselly Senator Mitch McConnell, ruled that appointing a new Supreme Court judge so close - 9 months! - to an election, would be morally wrong, and deprive the voting public of a say in the make-up of the court.
Now, however, one-and-a-half months before another election, McConnell's concern for morality and the voting public seems to have swung 180°, and he is positively salivating at the prospect of a Supreme Court stacked with fellow Republicans. He argues, disingenuously, that the current situation is different from that in 2016, because now both the President and the majority in the Senate are of the same party. And that matters how? The fact that the House of Representatives is controlled by Democrats is not relevant because the House has no influence over Supreme Court appointments. Those are just the rules.
Back in 2016, a time that seems like a an earlier, more naive, era, Republican Senator Lindsay Graham went so far as to say, "I want you to use my words against me. If there's a Republican Senate in 2016, and a vacancy occurs in the last year of the first term, you can say Lindsay Graham says, 'Let's let the next president, whoever it might be, make that nomination' ". Graham who is now leading the charge to back Trump, is, of course, having his words used against him.
Possible hold-out (and no friend to Trump) Mitt Romney has justified his support on the grounds of historical precedence, by cherry-picking occasions where the President and the Senate are both of the same party (although there are exceptions to even that rule). Many other Republican Senators who made definitive statements about filling SCOTUS positions in an election year back in 2016, are now struggling to justifiy their change of heart.
It was RBG's dying wish that she not be replaced until after the election. Trump, of course, maintains that the Democrats just made that up, and indeed that he is "constitutionally obligated" to do.so. Fox News' Tucker Carlson opined that, " If it were true, it would be pathetic". That's the kind of attitude Americans are up against. Trump's justification that, "I think it would be good for everybody to get it over with" makes no sense at all, like most of the pronouncements that leave his mouth. If he is so supremely confident of winning the 2020 election, then he has no reason not to delay the nomination.
Anyway, the outcome is not quite a foregone conclusion. There are still some reasonable voices on the Senate, even if sleazy McConnell is not one of them. But how I wish it were different. A Democratic/liberal appointment to replace RBG would still leave a narrow 5-4 Republican majority on the Court, after the two buddies that Trump has already appointed, but a 6-3 majority would be unconscionable on so many levels.
The idea of "court-packing" remains - if the Democrats were to recover control of Congress in the next election, they could vote to increase the number of Supreme Court judges from nine, and pack the new positions with Democrats. It has been employed several times in American history, most recently by Franklin D. Roosevelt in 1937. But it's a desperate, retaliatory stategy, that risks the Democrats sinking to the same low ethical standards as the Republicans (and setting off a potential future arms race), and Joe Biden is probably wise to be wary of it.
There is still a moral high road in America - it's a pretty low high road, granted - and Democrats have to make sure they at least try to take it. At the moment, Joe Biden is saying he will have none of it. Otherwise, they are no better than the worthless Republicans.
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