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Ginsburg's Death Puts Rule of Law and the Constitution on November Ballot

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
AP Photo/Patrick Semansky

The death of the liberal icon Supreme Court Justice Ruth Bader Ginsburg, greatly admired even by her opponents, has wildly transformed the presidential campaign.


It was once about Democrat Joe Biden and Republican President Donald Trump.

But now, the rule of law is on the ballot. The Constitution is on the ballot.

And Trump and Biden are merely the flawed personalities out front.

The Democrats have come unhinged by tribal, political rage, as they were during the angry confirmation hearings of Justice Brett Kavanaugh, continuing their pattern of character assassination of Republican judicial nominees.

Kavanaugh was accused of sexual assault and politically convicted by Senate Democrats (and much of the media) without ever being granted the presumption of innocence. His reputation in tatters, Kavanaugh was ultimately confirmed.

The nation watched. It certainly was ugly. And it was pure power politics.

Now, with the nation consumed by real fire in several Democrat-controlled cities, and rhetorical fire from politicians of both parties, Democrats threaten more chaos if the president makes good on his promise to nominate a replacement before the Nov. 3 election.

These threats include packing the Supreme Court, ending the Senate filibuster, and adding two new states -- Washington, D.C., and Puerto Rico -- which would give Democrats greater power in the Senate.

If all this were merely a political temper tantrum, like that angry young woman on TikTok screaming alone in her car when she heard the Ginsburg news, America could grit its teeth and wait it out as would an exhausted parent.

But the election is six weeks away. And Democrats threaten to pull the entire edifice down if they don't get what they want.


With mail-in balloting being offered by some states that could be overwhelmed by the process, and with Democrats such as Hillary Clinton urging Biden never to concede, the potential chaos could make those Florida hanging chads of the 2000 Bush-Gore campaign seem like Saturday in the park.

In these circumstances, allowing a vacancy on the Supreme Court would be dangerously irresponsible.

Though the Democratic threats are, for now, hysterical and rhetorical, the damage that partisan court-packing and adding states would do to the republic is incalculable.

"Nothing is off the table," Senate Minority Leader Charles Schumer, a New York Democrat, reportedly told his Democrat caucus.

Until Ginsburg's death, the presidential campaign on the Democratic side had been about a frail and rapidly aging Biden hoping to sell his moderate persona to swing-state suburban voters, even with his party firmly in the grip of the young and energetic hard left.

Biden's Democrats had adroitly framed the election as a referendum on Trump's handling, or mishandling, the federal response to the coronavirus pandemic. But now all that's changed, hasn't it?

The Supreme Court nomination hearings will bring the seething tensions among Democrats -- between the left and the few old moderates who remain -- into sharp focus for voters. And should Trump nominate federal appeals Judge Amy Coney Barrett, Democrats would again be compelled to attack her Roman Catholic faith, which is exactly what they did to her during her last confirmation hearing.


Judge Barrett handled herself with grace, even as Sen. Dick Durbin of Illinois wondered if she considered herself to be an "orthodox Catholic," and Sen. Dianne Feinstein insisted that "the dogma lives loudly within you."

That didn't poll well. In this round, Biden's running mate, Sen. Kamala Harris of California, a member of the Senate Judiciary Committee, will be front and center. She was merciless in her personal attacks on Kavanaugh, and now, to keep hold of her party's ascendant left wing, Harris will be expected to be in full attack mode, just as Biden appeals to Catholic suburban swing-state voters.

No wonder Ginsburg's death has driven the Democrats mad.

For decades, Republicans have been campaigning to install constitutional originalists on the High Court. And Democrats wanted to install liberal justices, to bend the original intent of the framers, to carry legislation they couldn't get through Congress otherwise.

Schumer has long made the Supreme Court the issue, as did Senate Majority Leader Mitch McConnell, the Kentucky Republican, after blocking consideration of Democratic President Barack Obama's Supreme Court appointee, Merrick Garland.

I thought then that the Senate should wait and let the people decide in the November election. And the people did decide. The Supreme Court was a main issue. Trump was elected president in large part by promising to nominate originalist justices. This was still an issue in 2018, when Senate Republicans increased their majority.


Now, Democrats say Trump should wait and not make an appointment so late in his term. But as Ginsburg made clear in an interview after Obama's election year nomination of Garland, "There's nothing in the Constitution that says the president stops being president in his last year."

But that's not the quote Democrats and their media allies hold dear. Instead, they cling, bitterly, to what Ginsburg's friend, National Public Radio's Nina Totenberg, reported as RBG's dying wish, told to her granddaughter Clara Spera.

"My most fervent wish is that I will not be replaced until a new president is installed."

Trump clumsily cast doubt on this, enraging Democrats and their media allies, who shrieked with great outrage, as if the icon of a saint they'd carried before them into battle had been disrespected.

But if a lawyer brought such emotional appeals before the Supreme Court, one might expect Ginsburg to give that lawyer a withering look while remarking that sentiment, no matter how touching, isn't remotely relevant constitutionally.

It was always the law with her.

Yet after her death, it's all politics now.

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