As we know, Ruth Bader Ginsburg died last week. I'm not going to do a eulogy, but obviously, she was an uncommonly gifted, courageous and interesting person, beloved by the left and even some on the right (not that they wanted her on the court any more).
I just want to talk about her last wish and about what's fair or not.
She lived the last few years with cancer, but had an absolute right to hold on to her job; in fact, it was nobody's business but hers, certainly unless her illness would have caused her to no longer have the good behavior required of Article III justices. She was nominated, she earned it (almost unanimously approved, 96-3) and she was, though bent over, sick and frail, seemed mentally sound.
According to Ruth's granddaughter, her most fervent wish before passing on was that the next Justice would not be chosen except by the next president to be elected. Let's take her granddaughter's word for it, because, I suspect it is true. But, if RBG wanted to blame anyone for the current situation, with Donald Trump nominating and possibly having confirmed the next Supreme Court Justice shortly before election day, she can blame herself. She could have given up her seat earlier. She did not give up her seat when Obama could have filled it, back when she was in her '70s, maybe thinking that she would outlive the next president's term if she didn't like him/her and, that likely, Hillary Clinton was going to be president for 8 years, anyway.
So, riddle me this, Batman - if Hillary Clinton was president right now, and Donald Trump was leading her in the polls by a substantial margin, do you think RBG would have had that last wish. You might if you are blinded by partisanship. You might think - what? Are you saying she didn't have integrity? No, I'm not saying that. Maybe she (or you) would have liked to think she would say the same thing in the circumstances I've just envisioned . . . but, come on. I mean, come on.
We all know she couldn't stand Trump (not that this is a rare occurrence - I suspect Justice Roberts and at least 3, maybe more of them, feel that way) and what this really proves, is that she maybe should have recused herself from cases involving him (like the one about turning over his tax returns). She had already had to walk back a July, 2016 insult, calling him "unfit for office" and other remarks that caused consternation even among some liberals. She said she regretted her remarks, but, did she? Or did she, like so many people in public, realize it was a smart thing to say. The non-apology apology. Was it even grounds for impeachment? Arguably. If, despite the only non-double hearsay quote to the contrary and what the president of Ukraine says, Trump bullied the leader of a foreign country (hell, we've killed others) and that's grounds, why not her highly criticized behavior. And, if impeachment is all political, as often claimed (though, truthfully, that's not what the Constitution says, and I despise that argument) why shouldn't she have been impeached? If crazies on the left still want to impeach Kavanaugh for maybe, possibly, fondling a young girl when he was 16 (despite a lot of evidence to the contrary and despite the fact that Joe Biden is accused of far worse) sure she could have been if the Republicans were the Democrats in temperament when they had the power to do it before the 2018 election. I doubt much she'd have been convicted. But, it was let go - I doubt anyone seriously considered it, and she ruled on his cases.
The larger point is though - it's just no concern of hers what gets done when she's off the bench, whatever the reason. You would think she would know this point - but, we have a Constitution. It doesn't say the president and the Senate need an outgoing justice's approval. RBG got to rule on what the law means (I mean, that's laughable, of course, but we mostly all pretend it is what justices do, because we don't know a better way to go about it), and the President - the one in office, gets to nominate justices.
So, when should he not do it, not nominate someone, arguably, when there's an election coming? That's the refrain, right? Not in the last year. That's what kept Garland off the bench (who I can't forget, publically cried when Obama picked him, at the honor of it, and I'm not mocking him at all). It's what Joe Biden, Chuck Schumer and others said should happen when Bush was in office, but didn't get a chance to block him.
Well, they were all wrong, at least in the wisdom sense as to what they should do, but legally as to what a president can do. After all, McConnell didn't stop Obama from nominating Garland and D dread of another conservative justice shouldn't stop Trump now. And now you have a legal authority (yes, me), saying so. Case closed. You know why? Because the Constitution says the president nominates and the Senate confirms. Not that the president nominates unless it is in the last (year, month, etc.).
Suppose you have insurance on your car. And, the day before your policy expires, it burns up. Can you imagine if the insurance company said, well, we don't think we should have to pay because, you know, we were almost in the clear? No. They would have pay because it happened during the term of your policy. The full term. No one would even suggest something like this outside of politics.
The president can decide, if he wants, to wait. Or he can decide to go ahead. Personally, I think Trump knows he is in trouble in the election (and maybe afterwards) and that's why he is pushing this. He wants another conservative justice on the bench and he wants to make sure that he gets her in whether there is a month or six months left because he may need it. These idiots in congress (and I have that on good authority from Mark Twain), can do whatever they want if they have it in their power to move ahead with it or not. And, believe me, the Rs are going to do what's in their power, unless other Rs revolt, and push it through, and the Ds are going to do everything (including possibly disgusting things, if the Kavanaugh hearing was any clue as to what's coming) in their power to stop it. This is the country we have. I hate that about it. But, there it is.
So, sorry, Ruth. I hope you are up there, young again, with your husband, Marty, and your buddy, Nino, having a party, but you can't reach back from beyond and change this.
Okay, so that's the last wish part. What about fairness? Sen. Susan Collins, a "moderate" Republican, who it seems is always fighting for her seat, has said that "In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.”
In fairness to what American people? I mean, didn't pretty much the same American people vote the last time. Some percent of them is dead or won't vote again for whatever reason, and some are new voters, but, even if they were all different, everyone, isn't what's "fair" for the people who voted Trump for Trump in 2016 (I know, we have an electoral college; spare me) to have him decide this while he's in office. Isn't it fair that the people who voted for this Senate in 2016 to have them decide? Why should they lose their choice. If we don't insurance companies deciding its fair to close out your options near the end of the term, why should we decide the next set of voters needs to be treated fairly, but not the last one?
I know, I know, you just want your side to win and that decides what is right legally. I've said this a million times. Either we have a system or we don't. There's not much left of the Constitution, thanks to our Supreme Courts going back pretty much to the beginning. But, we still have an electoral system that works pretty much the way it was designed, or at least as amended from time to time.
Last thing - This is how I feel about it. I can't stand Trump personally either. But that doesn't mean I don't think he's done some good things as president, some great things too, and probably would have done more had the Ds not decided to be the resistance, and worked with him at least for the country's benefit. And I want him to win, because the vicious politically witch-hunting and insane radical resistance thingee going on for years now is far, far worse than having a boorish president. Far worse.
I want to once again promote my own proposed Constitutional amendment. Every president should get to have an up or down vote on every nominee within 60 days of the nomination - which might also have the effect of also sort of making a deadline for nominations. There are many things congress wastes its time with (including most speeches - who is listening?), but, these crazy nomination battles are the worst. Not only a waste of time, but so divisive. Kavanaugh's was just the worst of the worst.
People remember Garland. Even some Rs I personally know who I've had a chance to repeatedly press my opinion on that not giving him a hearing was not unlawful, but foolish, have started to agree. But, again, let's not pretend, that's this wasn't exactly what the Ds said they were going to do with a Bush nominee, if it had happened with him in the last year of his term. And, let's not forget that what the Ds did to Miguel Estrada, who they blocked for two years in Bush's first term, until he finally had to withdraw (and I'm sure the late Robert Bork and Clarence Thomas would also like to be mentioned). The Rs play games too. Jesse Helms was famous for bragging about keeping his foot on the drawer with certain nominees' files in it. This party dual goes back to Jefferson and Hamilton in these United States, my friends. And the Mesopotamians and Egyptians were probably Johnny-come-latelys too when it came to playing politics. God - just go with this - probably invented politics when he decided A and E could eat from every tree in the garden except that one tree.
And we know why, if we are actually fair? Why all this last wish and fairness stuff, why the Ds want to wait despite how they felt during Garland's nomination and the Rs want to push it through, unlike with what they did with Garland. I'll tell you why, if you can't conceive it. Because it's almost never about what they say it's about. Like most things in the political world, hell, the whole world, it's about trying to get what you want. Power. And power and fairness usually go together like the insides of a pumpkin and burnt coffee grinds.
Allrrrrrighty then. Who is the nominee, Trumpy?
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