What should have been a period of sober national mourning, after the death of Ruth Bader Ginsburg – a titanic figure in US legal history and a Supreme Court Justice for 27 years – turned into a squalid, partisan and offensive Republican drive to replace her as quickly as possible before the new President could be sworn in.
Sad and poignant, Ginsberg’s dying words were that the next President should name her replacement.
Without waiting for the lying in repose at the Supreme Court and the lying in state at the Capitol – the first woman to be honoured in this way in the Capitol’s 227-year history – and her burial in Arlington Cemetery this week, Senate Republican leader Mitch McConnell and Trump moved to fill the vacancy two hours after her death.
There is a palpable sense of disgust in the US that ‘the greatest jurist in American history, a pioneering defender of women, a story of love and perseverance who inspired millions’ would receive such a farewell from a US President.
US attorney Joseph Welch famously used the phrase ‘no sense of decency’ when questioning the discredited Joseph McCarthy – the ‘infamous hunter of alleged lefties and communists’ – at a congressional hearing in 1954.
Donald Trump now wears this badge with distinction.
Speaking at a rally in North Carolina only hours after Ginsberg’s death, Trump whipped up his base to chant ‘fill that seat’.
This expression of disrespect was followed by the hypocrisy of Lindsey Graham, who in 2016 orchestrated the defeat of Barack Obama’s Supreme Court nominee Merrick Garland, arguing that the vacancy should not be filled before the election.
Senator Graham now supports the early filling of the Supreme Court vacancy, but said then: “I want to use my words against me.
If there is a Republican president in 2016 and a vacancy occurs in the last year of the first term you can say, Lindsey Graham said let’s let the next President, who ever it might be, make that nomination.”
With only 35 days before the presidential election, partisan bitterness over the Supreme Court vacancy will become more intense.
While the court is the highest and most powerful in America, handing down rulings which are often groundbreaking and controversial, there is understandable anxiety about the prospect of the President turning a five to four majority in favour of conservative thinking into a six to three one.
Trump is close to achieving a remarkable and unprecedented legacy – shifting the balance of the court by appointing three new judges in his term of office.
This could shape America for a generation and embolden those on the right, especially white evangelical Christians, who are stalwart supporters of Trump, and determined to overturn Roe vs Wade, one of the most significant Supreeme Court rulings, which confirmed in 1973 that “unduly restrictive state regulation of abortion is unconstitutional’.
Transactional politics are undermining democracy and allowing an unelected institution to become an instrument of unrepresentative tyranny.
The Supreme Court is perceived as having partisan and right-leaning credentials, especially when ruling on issues of gun control, LGTBQ, religion, abortion, race, gender, immigration and voting rights, known in America as’cultural wars’.
Race wars, spiritual wars, cultural wars, and freedom wars embrace identity, and are hugely influential in American politics.
Public opinion remains in favour of abortion, but a dysfunctional Republican party and a free-wheeling President are creating the conditions in which, similar to the electoral college, the Supreme Court, at least for the foreseeable future, could make rulings which are undemocratic and against majority opinion.
Some Republican legislators fear the desire to move quickly on filling the vacancy could cost them control of the Senate and pitch abortion into an already ugly election campaign, something they do not want.
For now, Trump has the numbers in the Senate to confirm his nomination, Judge Amy Coney Barrett, to fill the Supreme Court vacancy.
From Indiana, she is a devout Catholic, the ‘golden girl of the religious rightg, and believed to be fiercely anti-abortion, against gay marriage, expansive on gun rights, hard-line on immigration and has said that ‘a legal career ought to be seen as a means of serving God’.
Barring any unforeseen circumstances, six-to-three will be the shape of the court in 2021.
Democrats hope that Trump’s tactics will energise their supporters and encourage them to vote, as well as protesting.
Looking beyond the Senate confirmation, a debate is taking place on what response should be made if Biden wins and the Democrats take control of the Senate.
Ideas range from the revengeful – creating two new safe Democratic states, Washington DC and Puerto Rico, which would add four new Democratic electoral college seats in the Senate, and eliminating the filibuster – to the serious, such as increasing the size of the Supreme Court with left-leaning or moderate judges and scrapping life-long appointments with term limits for the existing bench.
The Supreme Court is a creation of the US Constitution, but its composition and functions are within the discretion of the Congress.
In a divided America, any attempt to reform the Supreme Court will be incendiary.
But the Democrats, if they win power, will have to be bold and ambitious, and move quickly, if they are to remove deep-seated corruption and cronyism and contempt for the rule of law.
A message from the Editor:
Thank you for reading this article on our website. While I have your attention, I also have an important request to make of you.
The dramatic events of 2020 are having a major impact on many of our advertisers - and consequently the revenue we receive. We are now more reliant than ever on you taking out a digital subscription to support our journalism.
Subscribe to scotsman.com and enjoy unlimited access to Scottish news and information online and on our app. Visit www.scotsman.com/subscriptions now to sign up.
Subscribe to the Edinburgh Evening News online and enjoy unlimited access to trusted, fact-checked news and sport from Edinburgh and the Lothians. Visit www.edinburghnews.scotsman.com/subscriptions now to sign up.
By supporting us, we are able to support you in providing trusted, fact-checked content for this website.