Tipsheet

WSJ Editorial Board: Sorry, Ruth Bader Ginsburg's Wish Regarding Successor Isn't Her Call

Matt Vespa
Matt Vespa  |  September 20, 2020 4:05 AM

To quote Saint Mick, “you can’t always get what you want.” That’s what liberals have to understand about the looming fight to fill the late Justice Ruth Bader Ginsburg’s seat. It’s been said that Ginsburg, who passed away Friday at the age of 87, wanted the next president to select her replacement. That’s not how this works. Ginsburg’s wishes are not law. They’re not to be followed. Of course, she didn’t want Trump to appoint her successor. In fact, it rehashes the notion that the “Notorious RBG” totally screwed over Democrats and the liberal wing of the Supreme Court by not retiring during the Obama years. The liberal wing would have had a younger jurist to keep that flank strong. Now, Trump is on the verge of ensuring an even more robust conservative majority on the Court for the next generation. That’s freaking out the Left. The Wall Street Journal editorial board doled out some tough love to these liberals regarding their use of emotion in an effort to stop Senate Republicans from taking up a vacancy fight (via WSJ) [emphasis mine]:

Her death leaves three solid liberals on the nine-member Court, and Justice Ginsburg understood the stakes in the decision of who will take her place. National Public Radio reported Friday that the Justice dictated this statement to her granddaughter Clara Spera only days before her death: “My most fervent wish is that I will not be replaced until a new president is installed.”

But her wish is not the Constitution’s command. The President has the power to nominate a successor as soon as he desires, and the Senate then has the power to confirm or not. The timing of that vote is a matter for the Senate to decide, and the current Senate can hold a confirmation vote even on the last day it is in session if it chooses.

Majority Leader Mitch McConnell said in a statement Friday evening that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” He is right to hold such a vote. The GOP retained its Senate majority in 2018 in large part because of the political backlash from the smearing of Justice Brett Kavanaugh. Whether Mr. McConnell holds a vote before or after the election is a prudential political decision based on the likelihood of getting the votes for confirmation.

Democrats are sure to raise as a precedent Mr. McConnell’s refusal, in 2016, to allow a Senate vote on Barack Obama’s nominee after the death of Justice Antonin Scalia. But that was a constitutional use of the Senate majority that Democrats would also have employed, as no less than New York Democrat and now Minority Leader Chuck Schumer had declared toward the end of George W. Bush’s second term.


We’re going to have this fight. Yet, the vote count, like during Kavanaugh, will be right. Mitch McConnell needs to really keep it in line. At the same time, yes, the Democrats will hurl the hypocrisy attacks. Who cares? Let them. We won the 2016 election. We get to decide who gets appointed to the judiciary. Also, when Merrick Garland was nominated by Obama in 2016, every liberal outlet and their mother was calling for the Court to fill the vacancy left by the brilliant Antonin Scalia, who was one of Ruth Bader Ginsburg’s best friends. Yeah, we remember all those pieces about how SCOTUS is crippled without that ninth member. And now, Democrats are mulling court-packing because…Trump. Then again, liberals are right in the sense that we need a ninth member just in case this election gets litigated all the way to the Supreme Court, which is possible. We can’t have a 4-4 tie situation.

Fill that seat.