Well, the left waited about a minute-and-a-half to demonstrate appropriate reverence for its long-time hero:
f**k you Ruth Bader Ginsburg
f**k you for not retiring under Obama
f**k you for dying under Trump
f**k you
f**k you
f**k you
Oh, well, that's just some bonkers no-name tweeter, so here's blue-check "religious scholar" Reza Aslan:
If they even TRY to replace RBG we burn the entire f**king thing down.
Oh, goodie. Because my main complaint about 2020 has been its tedious social tranquility.
For what it's worth, I prefer the reaction of the President, who eschewed the f**ketty-f**ks to describe Ruth Bader Ginsburg as "a titan of the law". That's true, even if one is opposed to much of her jurisprudence. Where I most objected to Madam Justice Ginsburg was in her extra-judicial forays, which were unbecoming to a judge and diminished both her and her office. Here I am with Tucker a couple of years back, after Her Ladyship's extemporaneous analysis of the 2016 election. An election result is what it is: It speaks for itself. If a judge wants to dissect its psychological underpinnings, she should step down from the bench and get a gig with MSNBC. The Ginsburg moment starts about 2-15 in:
On paper, however, it was a different matter. Even if one disagreed with her decisions, they were generally very tightly argued - which is more than one can say for some of the third-rate identity-politics picks of recent years or the dismal and unreadable rulings of contemporary jurisprudence more generally. I have had cause to pore over many of her opinions in connection with both Michael E Mann's vanity lawsuit and Cockwombling Cary Katz's many kourthouse kamikaze raids. As her great friend Antonin Scalia put it, aside from what he called the "knee-jerk" stuff (abortion, identity-group rights-expansion), "Ruth's pretty good". When I'm on the witness stand, I am wont to cite her, and not merely as a crude head-fake to ingratiate myself with leftie judges but on the merits. For example, from last year's CRTV vs Steyn trial:
CRTV LEAD COUNSEL JEFFREY MITCHELL: Let's move to Conrad Black.
On June 15th, 2018, Mr. Black introduced you as the recipient of the first George Jonas Award. That's at 75 -- Mr. Black has offered an affidavit -- it's not sworn before anyone, but he calls it an affidavit. That has to be corrected. And he says that he introduced you at an award named for George Jonas.
Do you recall that?
DEFENDANT STEYN: First, I think it's culturally insensitive for you not to refer to him as Lord Black. He has been ennobled by the Queen, and I don't believe it is appropriate for you to be so culturally insensitive as to deny him his peerage.
MITCHELL: Was he given his peerage before or after he served time in prison in Florida?
STEYN: As I said in my pleading to Mr. O'Neill, I believe the words I used were "he is an eminent Canadian historian, a member of the House of Lords, a Papal Knight, and in the United States a convicted felon" - for a case he took to the Supreme Court and where he won on all but one count, which the Supreme Court - Madam Ginsburg wrote the nine-zip opinion - remanding it back to the court in Chicago, and a sad and bitter and frankly pathetic Chicago judge nevertheless sent him back to prison.
But we own that, because in the rest of the common law world we think that's like a badge of pride.
MITCHELL: To serve time in prison in Florida?
STEYN: To serve time in prison for a crime that nobody in this room could actually explain and would not be a criminal offense in any other common law country... He fought that all the way to the Supreme Court. You can read Black vs United States. You can read the nine-zip decision by Judge Ginsburg...
Earlier, I'd cited her opinion in Taylor vs Sturgell (2008), on the circumstances in which a non-party in a nominal sense becomes as a practical matter the real party. I'll be citing her in Mann vs Steyn too, if that ever makes it to trial.
Also, on a sartorial note, I should add that I appreciate Sandra Day O'Connor and RBG, as the first lady justices of the Supreme Court, choosing to wear jabots (see above). It is the nearest thing to proper judicial garb on the shockingly underdressed bench of America's alleged high court. Elena Kagan, of course, has abandoned the tradition, so whether it survives Madam Justice Ginsburg's passing is doubtful.
What I loathe, however, is the very idea of a "Supreme Court nomination battle". When judges become that important, you've lost the plot constitutionally. There's no point throwing off one guy in ermine to prostrate yourself before nine guys in basic black, which effectively means five guys in basic black, which effectively means one guy in basic black - the designated swinger, which role John Roberts seems minded post-Anthony Kennedy to co-opt for himself. As I wrote fifteen years ago in The Irish Times:
Nancy Pelosi's job is leading the Democratic Party in the House of Representatives. They should have asked for references. Here's her reaction to the Supreme Court's recent and controversial decision on property rights: 'It is a decision of the Supreme Court,' said the minority leader. 'So this is almost as if God has spoken.'
Good to know a San Francisco Democrat believes in the word of God.
As it turned out, a day or two later God handed in Her notice. On Friday Sandra Day O'Connor announced she was stepping down from the bench. On a Supreme Court divided otherwise evenly between a four-man 'conservative' and a four-man 'liberal' bloc, Sandra was the ne plus ultra of swing voters, the fifth vote on over a decade's worth of big 5-4 decisions.
George Bush may be, in media shorthand, 'the most powerful man in the world', but Swingin' Sandra was the most powerful woman in America, and that's what counts. She came to embody the court's perceived if largely self-invented role as the true parliament of the republic.
That God-has-spoken stuff, by the way, was not how Abraham Lincoln saw it: 'If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. the people will have ceased to be their own rulers.' I'm with Abe.
Thirteen years on, a second Trump court nomination brought us to the Brett-Kavanaugh-the-Gang-Rapist I-believe-all-women-except-those-pawed-by-Joe-Biden phase of the republic's degeneration. Another two years on and the very possibility of a third Trump nominee is already inviting assassination threats. The pajama boys at Twitter, who routinely hide my Tucker and Sky News clips as "sensitive", are happy to let this one trend:
Get Mitch or Die Trying
Has NPR found an author of In Defense of Judicial Assassinations to interview yet?
Comment on this item (members only)
Submission of reader comments is restricted to Mark Steyn Club members only. If you are not yet a member, please click here to join. If you are already a member, please log in here:
Member Login
67 Member Comments
Mark,
The passing of Justice Ginsburg is another moment in the extraordinary Year of 2020. Over the past months the media reported on her health challenges, but the stories tended to convey optimism regarding her recovery. A polite media would be expected to do so out of respect for her privacy. However, the mainstream media and the Dems are anything but polite, as witnessed by their wont to politicize funerals. Maybe the media and Dems did not want to highlight the RGB's fragility and the potential of a less liberal Supreme Court in the upcoming election. Why not? Might it be possible that they believed that an impending, now open seat on the Supreme Court favored Trump rather than Biden/Harris? Your thoughts?
The propaganda NPR is spewing, that Ginsburg wanted her successor to be picked by a Democrat, is hogwash. If she wanted to guarantee a Democrat-appointed successor, she should have retired 5 years ago at age 82, when Obama could have picked her replacement. She knew the odds were high that normal mortality would catch up to her in the next few years. A seat on the Supreme Court is a Life Estate thst expires at death, with no surviving remainder that can be bequeathed to designated heirs. It is not an inheritable dukedom. The Founders should have provided mandatory retirement at 70 with full pay, and similarly for other Federal judges, to remind judges that they are mere dispensable mortals, easily replaced, public employees without unique wisdom, not prophet kings who rule until death. When the courts remove an issue from the power of elected legislatures, such as abortion, they are depriving citizens of the most basic right under the Constitution, the right to govern ourselves, the right to have government BY the people. When Lincoln used the phrase "government of the people, BY the people", the first clause was not inherently democratic. EVERY government is "government OF the people", including monarchies and tyrannies. But a democratic republic is "government BY the people", the democracy that that was declared in 1776 and which Lincoln was fighting in 1863 to preserve. While the various state legislatures mimicked phrases from the Declaration of Independence, and asserted they wete exercidingnthe same power invoked in 1776, they pointedly OMITTED the stayement that "all men are created equal", because it would have been too much hypocrisy even for them that a rebellion born of the insistence on keeping men in slavery could be dedicated to preserving unalienable rights of liberty granted by the Creator. Lincoln the lawyer was very aware of that effort by the Confederacy to repudiate those sacred words, and that the only way to preserve them for America, and the world, was to defeat those repudiators. And thus his message at Gettysburg: The Union sokdiers died to preserve government BY the people. Every time the Supreme Court deprives the people of the right of self-government, beyond the constraints of the Bill of Rights and the recognized traditions of liberty and due process of law, the court is undermining the democracy that two wars were fought to preserve in America, and a World War fought to preserve around the earth.
It's hogwash, alright, Raymond. Another note to add to your comment: the Founders probably never anticipated that SC Justices or anyone would live into their seventies or eighties, I'm sure. Maybe it's time for a new Amendment.
A question for the BLM movement is why would free blacks fight for the Union? Was it possibly because there was something written in the Founding documents indicating that all men are created equal that moved them to the act of giving the ultimate sacrifice to preserve the nation?
There was a famous film, "Glory," (1989) made about the first all-black volunteer regiment, the 54th Regiment, who fought heroically to save the Union and to free the slaves. Nobody seems to ever bring up their sacrifice. Didn't their lives deserve some serious consideration? Why would BLM disrespect those men of valor if all black lives mattered by engaging in the acts they do in order to tear this nation in half again? It could be time for BLM to re-evaluate their movement and come clean with the citizens. They are poisoning the minds of a generation of young black people.
Republican Supreme Legislature appointees are always the worst. In particular given that a woman's right to choose death is so important every time one of the nine is called to the death penalty ordained by God. Here are the lawmakers that gave us Roe vs Wade. Listed by the president that appointed them and how they passed the new law.
FDR - William O Douglas - Democrat - For
IKE - Potter Stewart - Republican - For
IKE - William J Brennan - Republican - For (a recess appointment which gives Trump another option)
JFK - Byron White - Democrat - Dissent
LBJ - Thurgood Marshall - Democrat - For
Nixon - Warren Burger - Republican - For
Nixon - Harry Blackmon - Republican - For (wrote the majority opinion)
Nixon - Lewis F Powell - Republican
Nixon - William Rehnquist - Republican - Dissent
So we have a legislature with 6 republicans and 3 democrats. The 5 republican votes alone could have made the new law. Why do people think that republican nominees are opposed to abortion? How did democrats know that agreeing with a republican court was the best way forward? How many are absorbed with the present rather than the facts? At this point should republicans take credit for Roe vs Wade and gather some white suburban female votes? Lots of questions, not so many answers.
Love you Mark,
Thanks for your imput
Mark W.
Republicans and Dems have both changed a lot since then. That's the basic problem with those who are flexible about the Constitution - we'll never know what the rules will be tomorrow, always subject to whims of five robed dictators. Party is irrelevant. Our choice now is dictator or apocalypse.
It is fairly disgusting to see prominent leftists openly discussing "court-packing" if a Trump nominee goes on the bench. It shows media rule in all its glory. If the Left can "court-pack", why can't the Republicans? Why isn't anybody at least worried about them doing it? I mean, they have held the Presidency and the Senate for almost 4 years, and the President is a "norm-busting" "Hitler".
Well, we don't need to worry about that. Republicans would never do anything so "extreme". And who decides what is "extreme"? That would be the media. After much chin-pulling, then, if Dems take the presidency and Senate, the media will announce that in this case it wouldn't be "extreme". We are ruled by the media.
Well, nuts to that. The media is - maybe not the enemy of the people as Trump says, but certainly the enemy of all that is right and good. If the decent fight on a battlefield where the media is the arbiter, they will never win.
GOP should table a constitutional amendment against court packing, and announce that if it is not fully ratified by Nov 4th, 2020, they will nominate and confirm Tucker Carlson, Ann Coulter, Steve Bannon, Ben Shapiro (etc, etc, pick the most triggering figures possible). Oh, and in case the Dems were hoping to win the election and court pack in their turn, make clear that the above-mentioned group will have full jurisdiction over any ballot-counting appeals.
That should get it done.
I don't profess - or pretend - to be knowledgeable enough to express any opinion on what the President should do with this curve ball in terms of "to nominate or not to nominate."
It does seem to me that there are really two questions here: What's the safest way to go in terms of the Court, and what's the safest way to go in terms of the election. As for the latter, the President's best bet might be to float the names of those whom he would nominate, and begin the process without actually nominating anyone. As for the former, well, see above.
I will say one thing: The President should use this to push Biden to the wall and force him to release his list of potential nominees. That will result either in Biden complying, in which case his list will scare the living daylights out of a not-insignificant number of voters; or, in Biden not complying, in which case Trump can pummel him over just why he's refusing.
Either way, it would be a win-win for the President.
Checks and balances. I cringe when they're used to describe the judiciary and regarding oversight. Making sure the president isn't corrupt didn't stop Obama when the very systems themselves are corrupt. Are we to create more agencies to overview the ones we have that are just as likely to be corrupt? The Spygate scandal is proof that it doesn't matter how much oversight you have if they're all in it together and not in the interests of the electorate. Constitutionalists can lecture us on how it should be done but last I checked, none of them are judges and are on the Supreme Court.
You make a good case, B. The counter-case is twofold: that all human systems are liable to circumvention and corruption, and that removal of the constitutional checks and balances would have abandoned government irrevocably to the Obama dynasty, which now may - just may - come to naught. Certainly we can all agree that systems do not work simply because they are postulated on paper: like any machinery, they need servicing and improvement to remain effective.
So called contitutionalists like the so called "great one" like to say what the constitution says but none of them are in a position of importance to make much a difference.
Sad, isn't it?
P.S.: I may have missed something. Which "great one" have you in mind, B. (not that it affects the validity of any point you make)?
I'm referring to another Mark that shows up with Hannity and Steyn knows who I'm referring to. He starts off wearing his glasses and takes them off when he starts talking in a quiet voice. He gets louder and starts yelling then shows off various papers and pages of books that are covered in post it notes and then says "I'm done".
Thanks, B. I'll take it that I'm not much the poorer for not knowing the man or his works, then!
The reason why the SCOTUS nomination process has become so contentious is that it has morphed into the defacto legislative branch. Almost everything that comes out of Congress is unconstitutional and could be and should be struck down. Whichever party is in charge of the bench, therefore, has the final say over what sticks and what doesn't. We don't get to elect individuals to the Supreme Court because we wanted politically based pathologies out of the judiciary. But it seems that has broken down. We might as well elect our justices. What's the difference?
Would that her last (public) words be "Please don't burn the joint down over my replacement." As a committed partisan, it probably never occurred to her.
Key point in this piece:
Any nation which instantly collapses into furious, near-lethal convulsions every time there's a Supreme Court vacancy is already in constitutional free fall.
These convulsions are not normal, they don't occur anywhere else, they're not compatible with any sensible definition of the words "functional country", and they're enabled by serious system bugs which, as it happens, no conservative ever wants to hear about, let alone fix.
Meanwhile, the leftists exploit the system bugs to push America as we know it ever closer to dissolution.
Dissolution may be desirable, Tal. As I've said on here before, when two groups of people don't even live in the same reality, should they be shackled together in a "united" states? As someone below points out and, as I have pointed out, when 8 of the finest legal scholars in the land look at a law and 4 say it means one thing and 4 say it means the opposite, they don't live in the same reality.
It's been a good run, but maybe it's time for a split?
As we learned in 1865, the only way to hold any diverse groups together is by force. 155 years later, the necessary force has become diluted. We learned the remedy from Jefferson 243 years ago -- The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. If force is not renewed by the government, it will be imposed by the people.
Tal - what conservatives think of as bugs are actually socialist features.
Socialism is designed to fail, so that people cleave to The State fpr security, pay, bread, water, gruel.
So the conservatives get in the clown car, drive it up the hill and then the socialists get back in and drive it off the road.
America is riddled with socialism.
Susan Collins needs to lose. The voters need someone who does not blackmail them.
Better to elect a genuine Democrat than a Dem in sheep's clothing.
A solid GOP voter boycott of Collins will be better than having this parasite run the country at key moments.
1. The only way to fix this is Term Limits on ALL holders of public office.
Making it unlawful for a lawyer to be a judge (or a politician) would be a good move too.
Was it King Edward 1 who worked out the problem with lawyers and law-making?
2. Ruth will be pulled from her pedestal - the left is, after all, progressive, and in 5 years Ginsberg will be roundly traduced as too conservative. She was, after all, a friend of murdered Scalia.
It's funny but I think her pick was an example of identity politics tripping up the Left. As the boss-man notes above, she was well qualified in the sense of having a sharp legal mind. However, given the neo-monarchical considerations associated with life tenure, she lacked a key qualification: youth. She must have been in her mid 60's when she was picked, that would have ruled out a judge who wasn't the "First WOMYN" to do thus and such. As a result, a GHWB pick (Thomas) outlasted her.
I couldn't get too exercised with eulogising or damning the late Justice Ginsburg. With less than two months to go before election, the interesting question will be how President Trump proceeds. If he doesn't nominate a successor, it might be interpreted as throwing in the towel in respect of re-election, or even as betraying conservative interests. If he does, the risk is that he will give his opponents time to concoct and table appalling accusations against the nominee without providing time for the nominee to discredit those accusations, and the accusations would be certain grist for the election mill.
Differently put, the timing of Justice Ginsberg's passing is not as favourable to the Republicans as one might think. If he does proceed with a nomination, President Trump would probably do best to select somebody who at first face it would embarrass the lefties to attack. Not many established black, lesbian, handicapped originalist judges on tap, as it happens. Interesting times.
It sure doesn't seem favorable at first glance to me, but the Dealer dealt the hand we have so we must just let the wild babies writhe and spit and do their thing they're going to do, S. We let this process go after the election has passed then the optics kick in: all the threats for arson, looting and 1000 x's worse, whatever they've got planned, then reinforces that the Leftist Greenies Fascists have the power to force our hand. Not a good strategy to allow them to call any shots. They know they can't win on policy so they will win by upending the entire process.
Sounds about right to me, F. Enjoyed your phrasing: " just let the wild babies writhe and spit and do their thing they're going to do". What have we come to, that skill in infantile tantrum management has become so important?
Well, it is happening just as you predicted, F. Mr Trump has undertaken to nominate, and the wild babies are hysterically writhing and spitting and at least announcing the things they're going to do. Packing the bench seems to me to be the threat with most teeth, but it seems to me that it is unwise to make concessions to an opponent who would go to such lengths to undo the independence of the judiciary from the executive and legislative branches of government. I would very much like your view on the probable response of the American electorate to a party which confidently proclaims its willingness to undo judicial independence, if you are disposed to share it. More provocatively put, can any significant portion of Americans be so stupid as not to realise how awful the prospect of a judiciary which pursues the bidding of either of the other arms of government would be? It's not as if America hasn't for as long as I can remember been (quite rightly) propagandising against societies in which judicial independence does not exist.
With any luck, the Democrats are busy beating another nail into their own coffin. What do you think: may I hope so?
Well, S., I might need to check my Oiuja board for this one, just a minute........
Wouldn't you know there was a lot of slipping and sliding around the board with no real answer. It's safe to say it's an open question because of the severe partisan divide in this country right now.
Rush said today that the radical Democrats are much smaller in number than the media would have us believe. So there's that. I'll give this some more thought in the next couple days and try for a better answer.
Most importantly, RIP Justice Ginsburg.
It is a sad state of affairs when the death of an unelected public figure causes half the country to fear for its future. In that sense, I empathize with my liberal friends; I remember the night Scalia passed and thought to myself, well, it's been a good ride. Of course, McConnell made his brazen bet, Trump released his SCOTUS short list in what was one of the shrewdest campaign maneuvers ever, and the rest is history. This would be an excellent time for the left to realize that legislating through the bench is not the role of the judiciary, and our federal government is far too powerful - you never want to create authority strong enough that you wouldn't want it in the hands of your adversary. Will they learn these lessons? I doubt it - that would require introspection.
So while I do feel for those who are saddened by the loss of a political icon, in terms of what to do with the empty seat, this is a no-brainer. The Dems will cry foul about The McConnell Rule, a point which Trump should hammer during the debates as it was once called The Biden Rule. In truth, the only rule is the constitution, where the president nominates while the senate advises and consents.
I'm reminded of Robert Bork's America, Anita Hill's Coke can, the refusal to vote on Miguel Estrada, the tears of Ms. Alito and Ms. Kavanaugh, Harry Reid and his nuclear option, and his indifference to the GOP applying his rule to supreme court nominees. Democrats have been playing politics with the courts for years and now they're livid because their tactics have come back to haunt them. I'd love to be more civil about this process, but seeing what we've been battling for generations, I'm looking forward to an up-or-down vote in the next six weeks.
I nominate f*ck for word of the year. This extraordinarily expressive and versatile expletive is enjoying a bumper year. It is an ancient word of respected vintage which, in a concession to conservatism, progressives are wild about. One might dispute the quality of many instances of its usage, however there is no disputing the quantity this year with the high point to date being the blizzard of video-verified deployments during the protests this summer. But wait, there may perhaps be even more to look forward to depending on which way the election goes.
As to replacing Justice Ginsburg prior to Election Day, I can only quote an eminent orator who once said "Elections have consequences". Now who was that guy?
Every time some joker in Australia says that we have to become a republic, I think of the example of other republics in the world, the US included. Probably the greatest criticism of that system, which I think Mark has pointed out numerous times, is that el Presidente is not forced to scrap it out in Parliament, arguing their point in the sausage factory that is policy making. This causes a serious erosion of the god-like aura that seems to surround a leader and that is nothing but a good thing. The American system has two fundamental flaws, the President and the High Court. We move on.
I watched bits of debates in the House of Commons between Prime Minister Theresa May and Labour leader Jeremy Corbyn, and -- even though both characters turned out be loathsome in their own ways -- they struck me as serious exchanges and, thus, a cut waaaaay above public political conversations between American officeholders.
And there was no comparison between those exchanges in the Commons with what passes for "debates" during American political campaigns. These latter are just joint press conferences in front of preening "journalists."
I hope Ms. Ginsburg rests in peace. I don't want to say anything unseemly here. I'll leave the unseemly stuff for her funeral(s). Can you imagine what the Ginsburg Funeral/Biden Campaign Rally will be like? I imagine it will make past Democrat political funerals look calm and dignified.
On another note, people are wondering about Republican senators who may be against appointing a new justice before the election. I think Lindsey Graham has already said he's against it. There is much speculation about Collins and Murkowski. I think there's someone people are forgetting who will most certainly vote with Dems. His first name rhymes with "kit" and his last name almost rhymes with "hominy". He's from a state that almost rhymes with "you all".
(Sorry for the near rhymes, Mark. I know how you hate those.)
I heard today that if there were three to five Senators that wouldn't vote with the Republicans before the election then the appointing process would be after the election, Steven. You mentioned at least four. What party do these people belong to? They don't realize this could be the last chance we get to nominate our preference should the Harris Administration find the votes they need between Election Day and Thanksgiving?
"What party do these people belong to?"
All but one "Republican" senator waved through S.386, to give millions of Indians and others permanent residence in the USA, utterly changing US Immigration law. Ted Cruz has yet to reply to my email asking him wtf he is doing pretending to be a conservative. But he is married to a Vampire Squid, and was a key Bush Baby.
Sartorially you are of course correct. Justices should express their individuality through wigs, face powder and neck decor, not speeches to the American Chimera Liberty Undoing.
I am impotently praying for anyone to consider nominating the one jurist in this country who is trying to keep us from becoming Canada or Britain in terms of free speech. Amazingly, she writes for National Review, is approved by the pre-Al Cardenas/Rubio-bagboy ACU and even the Federalist Society without being an open-borders dolt. She works with the fabulous National Association of Scholars; teaches at a California State Law School(!), and serves on the United States Commission on Civil Rights, where she is the sole voice opposing affirmative action, quotas, hate speech laws and hate crime laws. Yet her colleagues speak highly of her.
Sheesh. Maybe she's a Marvel superhero or weird changeling, but she has a solid vitae.
Her name is Gail Heriot. Pass it on.
She's as good as any. I happen to think that Harriet Miers would have been far superior to Roberts. Regardless of their cv, it's a crap shoot.
"... [Heriot] is the sole voice opposing affirmative action, quotas, hate speech laws and hate crime laws."
Have you forgotten Peter Kirsanow? I've always found him to be very impressive.
Mark touches upon the very heart of the 'problem' with the Supreme Court in post constitutional America. If only one of the three supposedly equal branches of our republic always has the final say with no recourse possible for the executive or legislative branches then you a recipe for pure tyranny should it fall into the wrong hands. Nothing complicated here for ivory tower scholars to debate. If Biden prevails the dems have outlined two options for total control of the court. Neither violate our constitution as far as I can see. Bernie's idea is to keep the number of justices at nine and rotate some out to district courts. A more popular option in the party is simply adding 4 or 6 additional seats. To remove the Chief Justice would require impeachment according to some constitutional scholars. In any event the very future of the Republic is at stake on Nov. 3rd.
Does our 'silent' majority understand this?
Oh, let's cut RBG some slack for finding "sexism" at play in Hillary's glorious, blessed defeat in 2016. What liberal didn't spew utter nonsense after the election? Some emptied their bilge tanks after a couple of months, others showed surprising reserves. I hope she was at peace with her decision to die on the bench (a decision denied Scalia). I am reminded of Ted Kennedy's similar choice not to resign from the Senate and let the Democrats install their next life-term "liberal lion" (more wolf, if you believe the stories, which I do). Kennedy's decision led to Senator Scott Brown (R-MA), however briefly. Just as there was no "Kennedy seat" in the Senate, there should be no Ginsburg seat on the bench, her purported dying wish notwithstanding. I respect her decision to stay on, and honor it by letting the political chips fall where they may. If it's not what she wanted, it's what she must have expected.
With respect, I think your Kennedy analogy (& I would include McCain) is mis-placed. Out of vanity they denied their constituents representation in a desire to die as a senator. Justice Ginsberg gave value, as she and her adherents saw it, to the end. We will never know whether she would have over- stayed competency.
As to her supposed dying wish — I am having trouble believing it. First, it's like saying the sky is blue. Second, & more telling, I think, is that is just so unseemly. It's a tacky thing to say & I don't think she did. If I'm right, how abominable her relatives.
Right on all of the above, Susan. That RBG would be playing the Trump card on her deathbed just seems utterly bizarre.
One doesn't have to be macho in order to display sexism, I guess...I am a white, college educated, suburban woman and voted on policy in 2016, not gender, Ruth. What's more, Ms Harris may be who they expect me to vote for, because of her gender (throw in the bonus points for her skin color) but, again, I will disappoint and vote on policy. Not to mention the future of our country.
And while we are on the subject... why should a law degree be necessary to be a Judge of any stripe?
Lawyers are hired guns. Their whole purpose and training is to find cracks and crannies in the law (and, of course, holy "precedent") to allow their paying client to get away with whatever nefarious act he committed. Barristers have long been recognized as people of no moral character at all, people who influence judges by any means possible.
Judges, on the other hand, are supposed to be citizens highly respected for moral character, intelligence, fairness, and (most importantly) incorruptibility. On all counts, except perhaps intelligence, lawyers are hopeless.
I admit that I have a chip on my shoulder about this. My father was the last non-lawyer judge in the state of Washington, and that fact has long made me thoughtful about the issue. Lawyers do not have a lock on intelligence, and many other professions (such as engineering and medicine) provide better backgrounds for incorruptibility and fairness.
Mark replies:
No argument there, Paul. I have been before a couple of local judges in recent years - one was a high-school driver's ed instructor and was perfectly competent; the other was the usual promoted lawyer, and was most unimpressive. I beat the rap in both cases, but, a year or two on, the latter was obliged to step down for shoplifting.
"...the [lawyer judge] was obliged to step down for shoplifting."
Hah! That's classic, and exemplifies everything I said. You made my day Mark.
Not too sure about the incorruptibility of medicine as the current madness illustrates. We engineers do at least have gravity to remind us not to get too far off piste, it's harder to bury the mistakes. I'm not a candidate of course, I'd get lonely as the only person not on Devil's Island.
Speaking of guns and precedent, I was alarmed when Judge Kavenaugh replied he would follow precedent on 2A. I would be more comfortable with something like: "The Constitution and then precedent, if the opinion expressed was based upon the writings of the founders."
Mark said "...which effectively means one guy in basic black - the designated swinger, which role John Roberts seems minded post-Anthony Kennedy to co-opt for himself."
And therein lies the importance of pushing through the next SCOTUS nominee. With 2 or 3 actual and 3 or 4 sort-of Conservatives (who have trouble discerning the difference between a man and a woman), the swinger position will be less important and Roberts can be freed of it, allowing him to become more conservative, so that there will be more 6-3 rulings for the betterment of the court's reputation.
It's always interesting that most cases are decided by 5 learned, uniformed, highly qualified, Senate ordained justices declaring the law one way, and 4 other learned, uniformed, highly qualified, Senate ordained justices declaring the law exactly the opposite. Makes one think maybe the law is an ass. Or we are, for accepting it.
Those sort-ofs have a nasty habit of furthering progressive causes.
"... 5 learned, uniformed, highly qualified, Senate ordained justices declaring the law one way, and 4 other learned, uniformed, highly qualified, Senate ordained justices declaring the law exactly the opposite."
From John Derbyshire some years back: "As I have explained many times to foreign friends, since it was explained to me by a learned man when I first came to this country, the justices of SCOTUS are not very exceptional persons. They are not even very exceptional lawyers."
The Romans said, "De mortuis nil nisi bonum dicendum est," translates to "Of the dead nothing but good is to be said." RBG was a great lawyer, she cut one helluva deal with the devil.
Mark, I have to disagree with you that the Supreme Court's role is "self-invented". Democrats had been packing the courts for years as a political strategy: why shop for judges when you can stock the shelves? The liberal line that only a judge's qualifications shoul matter got tossed when Ronald Reagan nominated Robert Bork. And congressional Democrats are perfectly happy with a supreme Supreme Court. You can ask Nancy Pelosi if you don't believe me.
Her opinions might have been "tightly written" but far too many managed to find leftist wishlist items in the white space of the Constitution or statutes—and that's tyranny. So RIP Justice Ginsburg and best wishes now that you've graduated to "good leftist" status.
Let's not forget Kelo, one of her worst.
Any ideas as to who'd we'd want to fill the seat? I wonder if Lord Conrad Black can fill it?
Dear Mark,
With regard to Justice Ginsberg, ... the following quote is from an opinion piece on FoxNews.com this morning by Elizabeth Slattery and John Malcolm, both of the Heritage Foundation, and she of the Pacific Legal Foundation:
"Indeed, the bulk of Ginsburg's work demonstrated a belief in a Supreme Court with seemingly limitless powers over society; a living, evolving Constitution that changes with the times; and laws that 'enlarge or contract their scope as other changes ... in the world, require.'"
Perhaps therein lies the problem. Some people believe the court should wield "limitless power" (nine unelected individuals, in the case of the Supreme Court), that the Constitution should be modified to suit the current culture, and that laws don't really have to mean what they say. Some people in government believe that Americans are subjects of their government. That's sad. I'd like to believe that most of us do not.
I hope you can identify. I know you Brits sing about being ruled ... "Happy and glorious, Long to reign o'er us ...""
Our Founders made few major errors, but one was naming the highest court. That word "Supreme" was bound to go to their heads, and it has. The US Constitution was mindfully designed to create a country with God as its only Sovereign, with people free to bow only to Him. The Supreme Court has come to have other ideas about that, exhibited best perhaps in the Roe and Obergfell decisions; they recognize no higher authority than themselves, and that is in and of itself a constitutional crisis.
Mark replies:
You're right, Paul. The term in Oz, Zanzibar and other Common Law jurisdictions - "High Court" - is much better.
In New York State, the trial courts are calked Supreme Courts for some historical reason, while the ultimate state court is the Court of Appeals. The names don't change anything. The Appeals Court still acts like a super kegislature.
I have been advised that amending the Constitution, by for example increasing the number of Supreme Court justices, requires consent by 2/3rds of the states. As enough are reliably red unless Puerto Rico and DC join the game I reckon that is not going to happen. The 9th Justice could therefore hardly be more crucial. Sadly the loathsome Romney to name but one is 99% likely to oppose anything the President suggests.
If Romney prevails there will be an election, almost certainly contested by the myriad lawyers already assembled for that purpose, the result of which will quite possibly not be known by mid January when interim President Pelosi will step forward and possibly hold the Presidency for a considerable time as the Court will be split 4:4 due to John Roberts having lost his spine at some time in the last decade. Why would the Dems want sleepy Joe or Bobblehead when they have the evil but highly effective Pelosi pushing the agenda?
That's my view from the other side of the pond. I hope I'm wrong.
Romney, Collins, Murkowski, Gardner, Graham, too many to count. Mark has summed it up perfectly on more than one occasion: "when democrats win, they're in power; when republicans win, they're in office"
Not so, John. The judiciary, with the exception of the Chief Justice, is a creation of Congress. It was first established by The Judiciary Act of 1789 and amended since. In 2008 when Obama and the Democrats had both Houses of Congress they could have made any change they wanted.
Thank you Walt, that's not good and appears to make the current debate irrelevant other than to avoid a 4:4 gridlock at a pretty important time.
If President Trump is re-elected he will get his Conservative judge sooner or later. If he loses the Democrats will expand the number beyond 9.
I suppose Obama only refrained from addressing this issue when he inherited control of both houses in 2009 due to the fact that, backed up by his wingman AG, he never took notice of judicial rulings he didn't like. Did he have just enough sense not to start an "arms race" along the lines of if you increase it to 11 then the next time we're in power it will become 15, then 17 then 21 etc. The fact that the RINOs are too wet to respond in this way will be irrelevant as with demographic shift, mail-in voting, expanded eligibility and newly created states they would be pretty unlikely to ever control either house again.
Is the life-long tenure of judges eligible for similar changes, W.? Could a party which holds both legislative houses by the same token dismiss supreme court judges through an act of congress? I'm assuming not, because that would seem far simpler than expanding the bench and filling the vacancies with Roland Freisler and Vasili Ulrikh lookalikes.
Of course, maybe the phrase "packed bench" simply charms the bloomers of Mrs Pelosi, and she wants one in the same way as a child wants a lollipop.
The Constitution only implies the office of Chief Justice in Article I by saying one must preside over an impeachment. In Article III the Chief Justice and other judges are mentioned without detail except that they have to be paid. Section 1 says judges shall hold their offices during good behaviour (no high crimes and misdemeanor stuff) and yes, embarrassingly it is spelled with a "u." My interpretation would be that if they don't have the reading comprehension skills to read the clear meaning of the text then they are not behaving well enough to serve in office. Of course, no one asked me..
If Congress threw the whole judiciary out, then one of the judges would sue, another judge would grant an injunction and then other judges would rule if Congress could do that. A veritable chicken and egg situation, a Mexican Standoff -- pollo o heuvo!
You will not find such magnanimity on the Left. Instead you will find the attitude that of course you should recognize the brilliance of RBG, but that doesn't mean we have to ignore the evilness of (whatever conservative happens to die).