Ruth Bader Ginsburg and who next for the US Supreme Court?

Today I wake up to the news “Ruth Bader Ginsburg: US Supreme Court judge dies of cancer, aged 87 and so significant is this news I feel (for reasons I will give) that I am blogging my thoughts …

According to Wikipedia:Ruth Bader Ginsburg, (March 15, 1933 – September 18, 2020), also known by her initials RBG, was an American jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by President Bill Clinton and was generally viewed as belonging to the liberal wing of the Court. Ginsburg was the second woman to serve on the U.S. Supreme Court, after Sandra Day O’Connor. Following O’Connor’s retirement in 2006 and until Sonia Sotomayor joined the Court in 2009, she was the only female justice on the Supreme Court. During that time, Ginsburg became more forceful with her dissents, which were noted by legal observers and in popular culture”.

The first thing to say is commiserations to Justice Ginsburg’s family and secondly, whether one agrees of not (and I am definitely in the “not” camp concerning her decisions) she is a remarkable woman – courageous, tenacious and dedicated to the causes she champions, such as women’s rights, and no doubt a lot more besides. I also think she has made some outrageous decisions as Supreme Court justice, I for one cannot excuse. Her death comes as no surprise for she has been ill for some time. Some have gone as far to say that she was only hanging in, when stepping down would have been the appropriate response in any other circumstance, to stop the conservatives in the Supreme Court holding sway for, as long as Trump remains president, any replacement will be a conservative.

Many of my fellow Brits, who know little better, will be somewhat bemused as to whether Liberals or Conservatives dominate the Supreme Court matters – but it does and so does whoever is USA President, whose gift is to nominate replacements (who cannot be sacked and can stay around for a long time – and often do). Some have gone so far as to say that the ability to choose who sits on the Supreme Court is the most significant of the President’s powers. While I am pretty sure, if I had time, I can come up with a list of judgements of the final judicial arbiter in the land that are significant and while one would hope justice wears a blindfold, decisions are made on liberal or conservative lines.

Unsurprisingly, within hours of her death being announced, the big question has arisen – will Trump nominate a replacement before he is out of office – an actions that those quoting one of Justice Ginsburg’s dying wishes, that he doesn’t, are strongly opposed to. In a BBC article titled “Ruth Bader Ginsburg’s death sparks political firestorm” the possible scenarios are discussed. It begins: “Ruth Bader Ginsburg’s death marks the passing of a liberal icon on the US Supreme Court, the loss of a jurist heralded by the left in the US for her passionate advocacy of women’s rights, civil liberties and the rule of law. Memorials and tributes to her, however, threaten to be overshadowed by the political firestorm that her death – and the resulting vacancy on the highest court in the US – will set off just 46 days before the presidential election”.

One doesn’t need to be a prophet to foretell that there will be plenty of fireworks ahead which we are already witnessing (and even during and after). I argue as much in my last Trumpwatch instalment: “Trumpwatch (33) – the most important US election yet!?” But few will have predicted the timing of Justice Ginsburg’s death and the challenge now facing the President, who no doubt will be considering the political fall out and whether he has the support to get his man (or more likely woman) through before a possible new President with different ideas takes office. And if it is him and assuming the Republicans are still holding a Senate majority, we would otherwise have to wait at least four months before RBG’s seat is filled. Besides which, if Trump delays, he risks there being a liberal replacement if he is not re-elected.

As for my two penneth, I first offer the caveat that I am unqualified to advise what he should do as I don’t have all the facts – but I will offer a view. Firstly, it is regrettable that whether a judge is liberal or conservative should have any bearing but history shows it does – notably the 1973 Roe verses Wade decision was made on those very lines. Secondly, such is the gridlock of US politics and notwithstanding that the separation of powers is a nice idea, it is also regrettable that too often the judiciary has to make decisions that ought to be made by the legislature and where existing law is unclear and, as has been repeatedly shown, the key document, the US Constitution, is open to various interpretations (and why so many split verdicts when judgments are made).

Thirdly, US politics is vicious and it is gone beyond two wrongs don’t make a right. Imho and a bit simplistic, the left play dirty and the right play clean. While we should also go for clean, the right has lost too many battles by being nice. While the Democrats (the left) may get on their high horses and point to the Republicans (the right) holding up President Obama’s nominee made not long before he stepped down as president, their antics when Trump nominated Brett Kavanaugh was nothing short of disgraceful. Given the make up of the Supreme Court is critical to the good of the country, I think Trump should do what he has been elected to do and hope that the US Senate agrees. We live, as they say, in interesting times!

Update 28/09/20

We now know Trump is nominating Judge Amy Barret as the next Supreme Court judge – the bookies favourite and in the eyes of many (on the right at least) the perfect choice for all sorts of reasons, not least her family of seven chiclren including two adopted from Haiti and one with special needs. We know the hearings will be soon and in normal circumstances she would be approved by the Senate within two weeks from then. But we don’t live in normal days but rather interesting ones, including anticipating what tricks the Dems have up their sleeves! As for me – it is a definite vote for Amy!


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