Columnist Earl Ofari Hutchinson
Trump and Senate Majority Leader Mitch McConnell wasted no time. They said almost in identical quotes that if SCOTUS Ruth Bader Ginsburg departs the court, they “will fill it.” The “it’ is her seat. Trump and McConnell didn’t unequivocally say that immediately after Ginsburg’s death. They said that respectively last July and August after the announcement that Ginsburg’s cancer had returned, and she was undergoing treatment. Trump and McConnell weren’t the only ones then chomping at the bit to fill Ginsburg’s seat. Her illness ignited a near feeding frenzy of ecstasy among conservative talking heads and interest groups over the joyous possibility to them of their getting another Thomas or Samuel Alito on the high court.
There is good reason they are in a rush to grab Ginsburg’s seat. A lot of GOP senators are in trouble in November, one of whom may even be McConnell. The loss of even a few of these GOP Senate seats and out goes their razon thin three vote majority in the Senate. Worse still for them, Trump also may lose. It’s not just Trump it’s Vice President Pence too. He is the supremely safe GOP tie breaking vote in the Senate. Given the nation’s fast changing voter demographics; more suburban, college educated women voters, more Black and Hispanic voters, more LGBT voters, and more younger voters. The overwhelming majority of them almost assuredly will swell Democratic party numbers in the coming years. It’s not a happy future for the GOP.
Trump and McConnell really have only one sure breakwater against being engulfed by the expected Democratic and liberal tide. That’s the SCOTUS. The window for them is narrowing and the time is now to get that hardright breakwater in place. A departed Ginsburg was always their best hope.
Trump has never wavered from his early public declaration that his ideal justices are Clarence Thomas and Antonin Scalia. He moved quickly to back that up by scurrying to the ultra-conservative Heritage Foundation to compile a list of the safest, most reliable, hard right conservative candidates they could find to fill future high court vacancies. The majority on his list are white males, and hard line opponents of abortion, same-sex marriage, voting rights expansion, and increased federal regulations.
Trump made clear,” This list is definitive, and I will choose only from it in picking future justices of the United States Supreme Court.” That’s just the start. They are not just garden variety strict constructionists, but activists and influencers on the bench. They will be judges who won’t just base their rulings on the standard conservative playbook, but will cajole, hector and badger other judges to toe the hard conservative line in their rulings. And who will have the gall when it suits their purpose not even to try and hide it.
Pence made the Trump-Scalia axis official when he vowed to a campaign crowd in Michigan during the 2016 campaign that Trump’s High Court pick would hit the bench with the practically sworn duty to slam down the curtain on Roe v. Wade. Pence didn’t stop there. He repeatedly vowed that Trump would appoint strict constructionists in his appointments and not just for a Scalia type judicial hit on abortion rights.
Trump and McConnell’s bum rush to get one of their own into Ginsburg’s seat is not simply to build a hard and fast rightist breakwater to liberals and Democrats. The Supreme Court has since the 1960s been the political jewel in the crown for staunch conservatives. The court became the right’s main prize during the tenure of Chief Justice Earl Warren. The right-wing routinely railed at the Warren court for its liberal rulings upholding and expanding civil and voting rights, labor, environmental and civil liberties protections, abortion, and reining in the corporate abuses. Conservatives viewed the high court as an unapologetic advocate of activist liberalism and loathed it for it.
The right has since Warren’s day groomed more judges for the bench who would rigidly toe the ultraconservative line. The court became even more important as a political tool for the conservative remake of the country when it became clear that just having more conservatives in the Senate and the House was not enough to roll back the gains in civil, women’s and labor rights of the past half century. Democrats even as the minority in Congress could obstruct or outright kill legislation through the filibuster.
The right correctly saw the Supreme Court not just as a neutral arbiter to settle legal disputes. It is seen as a lethal weapon to skirt congressional gridlock and serve a dual role as a judicial and legislative body. This meant scrapping the long-standing tradition on the court where justices based their legal decisions solely on the merit of the law, constitutional principles and the public good, and not ideology. Trump and his hard-right conservative backers are fully aware that the court’s power to be de facto legislators could last for decades. Presidents and congresspersons come and go, but justices can sit there until death if they choose. Ginsburg being just the latest among many other examples.
Trump and McConnell will battle hard to beat the election countdown and dump another Thomas on the high court. The GOP sees its shaky future is at stake in this battle.