The Consequences of a SCOTUS Empty Chair

by | Sep 27, 2020 |

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The President is hoping to fill the empty seat of the late liberal Supreme Court Justice Ruth Bader Ginsburg with Conservative Judge Amy Coney Barrett, but the Democrats who will interview her are saying, “Not so fast!”  
Ruth Bader Ginsburg was a liberal by nature and she devoted her life to liberal causes, particularly those relating to women. Now her seat on the Supreme Court is empty, and the choice of a new justice is up to the President, with the Advice and Consent of the U.S. Senate. The timing couldn’t be more difficult, but there is some question as to whether this will make any difference in the acceptance by the left for any appointment made by President Trump. 

This has happened before. When Justice Antonin Scalia died on February 13, 2016, his death was sudden and shocking. It also happened in an election year, but because he died in February, there were still more than eight months until the election. President Obama’s appointment to replace Justice Scalia, a conservative, was Judge Merrick Garland, who was considered a moderate, but his nomination was never allowed to proceed. There was a Democrat President and a Republican Senate, and the nomination was held back by a determined Mitch McConnell, who refused to bring it to the floor. It was only in 2017, after the election of Donald Trump to the Presidency, that Judge Neil Gorsuch was nominated to replace Justice Kennedy. There was a Republican President and a Republican Senate and his nomination hearings went relatively smoothly, ending in his confirmation.
But when Justice Anthony Kennedy retired at the end of June 2018, Trump’s nominee, Judge Brett Kavanaugh, met with astonishing hostility by virtually every Democrat on the Senate Judiciary Committee. The hostility turned into attacks on his character and hinged on events which they claimed had happened decades ago when he was still a teenager. In the end, the attacks proved to be baseless and Kavanaugh’s appointment was confirmed, but during the Advise and Consent process, the Democrats put him and his family through hell. At one point, the attacks were so vicious that they brought him to tears as he defended his own reputation and tried to protect his family from the lies and slander coming from the left.

Donald Trump’s most recent appointment, Amy Coney Barrett, will no doubt face similar hysterical accusations and she will have to have a strong constitution to weather that storm. 
The Republicans have promised a four day hearing, beginning on October 12, but it remains to be seen whether they will succeed in keeping the Democrats in check as they interview Judge Barrett. 

One interesting tactic that they used, several months ago when they interviewed U.S. Attorney General Bill Barr, was to ask long drawn out questions that stated their case but used up almost all of the time allotted to them, giving him little or no time to respond.

They may try that tactic again with Judge Barrett, although it is more likely that they will try to dig up something else in her past that will damn her with either a crime or at least some misbehavior on her part, that will (they hope) undermine her candidacy.  
Here’s the problem:  The Democrats in the Senate are liberals, who now lean very far to the left, and they are supporting the ideas of their socialist members. They want the Supreme Court to be an activist court, one which considers the Constitution a ’living document’. That means that whatever was written at the end of the eighteenth century needs to be updated to have context in modern 21st century terms. That all sounds reasonable, unless you subscribe to the idea that the Constitution was the brilliant work of brilliant men, who dealt in timeless concepts that remain true – as much today as they did back then. Conservative Senators want the Supreme Court to maintain the intentions of the original signers – the founding fathers – and hold true to their principles insofar as it is possible to do so. They are called ‘originalists’. 
So, for example, the founding fathers could not have had any understanding of our technology or our medical advances, they couldn’t understand our speed of communication or our speed of travel. But they did understand communication between people, and they understood the basic issues relating to life and death. They also understood greed and corruption, and they understood tyranny, from which they were planning to escape. So  they created a document that protected the people who lived in America from all of the evils that they had experienced in Europe. 
What they created was called “The Great Experiment”, and it designed a new form of government. What made it unique was that the people chose their government and not the other way around, as it had been in Europe. In America, the government was answerable to the people who elected it. It was all about personal freedom linked to personal responsibility.
Ruth Bader Ginsburg was a liberal judge, who believed in an activist court that could change the law from the bench. Amy Coney Barrett is a conservative judge, an “originalist”, who believes that the court should judge the law based on the Constitution “as written”, who sees her role as one in which she interprets the law under Constitutional standards as it was intended by the original framers. 

The Democrats have many arguments against her appointment:  that it is too soon after Ginsburg’s death, that it is too close to the 2020 election, that this new justice should be chosen by the next president, that it is against precedent, and, worst of all, because Barrett is an observant Catholic and, as Senator Dianne Feinstein (D-CA) once told her, “The dogma lives loudly within you”. 

All of these arguments can be countered with reasonable rebuttals, and they have been. There is certainly precedent for a speedy nomination to fill an empty chair on the Supreme Court, and a judge’s religion should have no bearing at all on his or her appointment. Judge Barrett has herself answered the issue of her religion. When Sen. Chuck Grassley (R-Iowa) asked when it would be “proper for a judge to put their religious views above applying the law,” Barrett responded unequivocally, “Never.” She said, “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”
Unless there is some unforeseen weapon that the Democrats bring to the hearings against Judge Barrett, she will win her appointment and add a clear and honest voice to the Supreme Court. It is the President’s hope that the hearings will be over quickly and her appointment will give the court the ninth justice that he believes they will need, following contested election results after November 3. The results are predicted to be muddy and may take weeks if not months to sort out. 
A Supreme Court with nine Justices will be a voice of authority that a split court never could be. And more than anything, we will need judicial clarity after the elections.

Ilana Freedman

Ilana Freedman is a veteran intelligence analyst with more than thirty years in the field. She was trained in Israel, where she lived and worked for sixteen years. After returning to the U.S., she served as CEO of Gerard Group International in Massachusetts, providing major corporations and government agencies with intelligence-led support for their homeland security programs. Her global network of specialists and field assets has provided her with an ongoing resource of critical, real-time intelligence and domain expertise. Today, Ilana is an independent consultant and author of hundreds of articles on terrorism and the geopolitical landscape. She has written four books on Islamic terrorism, and is currently working on a comprehensive book on China - past, present, and future.

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