Ginsburg – Supreme Court Justice

Fiery & fair. Tough but prudent. The late Ruth Bader Ginsburg (1933-2020) once said "Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.”  

Such views made her: ”... a jurist who seeks to build cautiously on precedent rather than pushing the Constitution towards her own vision.” (Legal scholar Cass Sunstein).

This post is not an attempt to educate or pontificate on The Honorable Ms. Ginsburg, but more to call out the ‘unmeasured emotions’ of the latter day Republican Conservative movement.

In 2016, 269 days before the U.S. national election that would replace Barak Obama with Donald Trump, and 350 days before Trumps inauguration, Associate Justice Antonin Scalia died.  He was considered by many as a stalwart conservative. 

The U.S. Senate, the congressional body charged with ratifying the President’s Supreme Court nominee, refused to do so. For over a full year the court was eight justices instead of the prescribed nine.  

Justification for the Senate’s failure to do their job was blatantly obvious. Leadership had a lame duck President and the death of Scalia meant a liberal nominee was to be vetted in his place. Since they had no legal objection to any nominee put forward, they would lean instead on parliamentary politics.

If there was ever a sure way to dismantle a democracy it is turning the rule of law into a political yardstick. Justice Ginsburg knew his all to well and battled cancer that should have sidelined her years ago, just to see the wrongs of 2016 reversed. She lost that battle with 46 days left before the 2020 election.

In 2016 as the Republican Senate used political bully tactics, Ginsburg proclaimed “Senators refusing to vote on President Obama's nominee to the Supreme Court should recognize that a president is elected for four years not three.”

If there is any justice left in American politics, we will find a way to return the SCOTUS to a body of legal scholars that are charged with interpreting the Constitution of the United States and not a chamber of politicians making good on promises.

One such possible solution is contained in the two year NPR funded study on governance (Q2 2020) that recommends an 18 year term limit for Supreme Court Justices - that ensures each administration has at least one justice to replace in each 4 year tenure. That gives a more measured process for replacement and mitigates the long term political influence of 'stacking the court'. 

Whatever the solution, we must wrench control of the court from political interests and return its focus to preservation of the Rule of Law and upholding he Constitution of the United States.

In 2016 the will of the people, the House of Representatives, the President of the United States, and by the declaration of Justice Ginsburg, the Supreme court itself, was circumvented by one individual: The Senate Majority Leader.

This can never happen again.

JWB