No Vacancy Left Behind
Last Thursday marked the four-year anniversary of the death of Justice Antonin Scalia, and the start of the most recent battle for the ideological control of the Supreme Court.
Scalia was the Titan of the Right and the most eloquent advocate for textualism, or originalism, on the Court. His untimely death meant that a Democrat, Barrack Obama, could replace him on the top court with a person who could swing the “theology” of Scotus from conservative to progressive.
So, Obama named Chief Judge Merrick Garland of the D.C. Circuit to the job, and the nomination just sat there … and sat there for 293 days until a new President was ready to squelch the appointment.
Sen. Mitch McConnell was determined to keep the vacancy open in an election year and had the votes to carry out the threat. When President Donald Trump assumed office, McConnell was hell-bent to honor his new threat, “Leave no vacancy behind”, and the rest is history.
Now a sort of macabre death watch has been visited on RBG, who is determined to defy every prognosticator. Democrats haven’t controlled Scotus since 1970. That was the year President Richard Nixon named Harry Blackmun to the seat vacated by arch-Democrat Abe Fortas (after the Senate turned down both Clement Haynsworth and G. Harold Carswell).
The following year FDR appointee Hugo Black, and John Marshall Harlan retired (and died) allowing Nixon to make two more appointments (Lewis Powell and William Rehnquist).
If some Democrat on the Court dies before 2021, McConnell will say that’s different because the Senate and the President are both GOPs. The appointment process for Justice Gorsuch took just two months, so even if Democrats won both the presidency and the Senate in November, and RBG was killed by a Mack truck the day after election day, McConnell could ram a replacement through before the first week in January.
Unlikely? Do you think Mitch cares whether Democrats have a conniption? (Remember his slogan, “Leave no vacancy behind.”)
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