Who Should Replace Ruth Bader Ginsburg?

Hello this is Darrell Castle with today’s Castle Report. Today is the 25^th day of September in the year 2020.¹ Perhaps this year will be pivotal in the history of the United States and the world as well. First, I want to tell you that the Castle family is doing fine during these very unusual and difficult times. The family daughter is adjusting well, and she seems more upbeat, more positive than she has in a while. We are very grateful for that.

Ruth Bader Ginsburg, R. I. P.

Today, I am talking about questions that are ever before us if we watch or listen to the news at all these days. We all know that Ruth Bader Ginsburg recently died at the age of 87. She served 27 years on the United States Supreme Court. (And before that, she served thirteen years on the Court of Appeals for the District of Columbia. – Ed.)

Ruth Bader Ginsburg had reached iconic status both as a Court Justice and as a feminist leader and trend setter.

May this President replace Ruth Bader Ginsburg now?

The first question to consider is does the President have the authority to make a nomination in this an election year. The answer to that question is easy; yes of course he does. Nothing in the Constitution restricts his authority to fill appointments in an election year. He has constitutional authority not until the election, but until his successor is inaugurated. I suppose all the controversy about it is like one of those unwritten rules of baseball that everyone abides by, or the next batter gets hit by a pitch.

The problem for the Democrats accepting this political fact revolves around Barack Obama’s nomination of Merrick Garland 11 months before the end of his second term. President Obama had no chance at reelection because it was his second term. It really didn’t matter though because Donald Trump’s chances of beating Hillary Clinton were zero as we all remember. Once she was inaugurated Mrs. Clinton could then reappoint Garland or anyone she wanted.

Authority of the Senate

The United States Senate must confirm the President’s nomination for it to be effective. And at that time, as now, Republicans held the majority in the Senate. The rules of the Senate give the Senate majority leader the power to decide which items come to the Senate floor for a vote And in Garland’s case Mitch McConnell held up the vote for 11 months. Democrats now say that it would be unfair for him not to do the same thing in this case. The truth is that there is nothing fair about war, only who wins. This is a culture war and the winner will determine our destiny.

Why didn’t Ruth Bader Ginsburg resign earlier?

Interestingly, Ruth Bader Ginsburg could have helped the Democrats out by resigning during President Obama’s administration. He could then nominate her successor. Instead she chose to stick around and continue her service, even to the point of joining in hearings on video from her hospital bed. Her daughter Jane recently gave an interview to The New York Times. In that interview, she said that her mother was certain that Hillary would win election. And she wanted the first woman president to appoint her successor.

About that (ahem, ahem) “dying wish”

We now have only Ruth Bader Ginsburg’s unrecorded deathbed statement that we are supposed to believe for who she wanted as a successor. She supposedly said as her last wish that no one would be appointed to replace her until after the next inauguration. That is a rough paraphrase, but it is close to what family and others report her saying. We don’t know for sure that she really said it. Because there was no recording of the words in Ruth Bader Ginsburg’s voice.

If she did say it, so what? Supreme Court justices, no matter how revered, cannot control the judiciary after their service ends.

The words mean nothing except something that we might want to consider out of respect for her. This country had already reached a very toxic level of politics. Now her death can do nothing but inflame and add to the toxicity. We are already fighting a culture war, a vicious, polarized struggle for the future. Ruth Bader Ginsburg’s death just added a new candidate to the ballot and that candidate is the US Constitution.

Ruth Bader Ginsburg on the Constitution

What is this document that we call the Constitution? Are we still bound by its terms? Or do we accept what Ruth Bader Ginsburg believed and that is that it is outdated? And therefore couldn’t possibly govern a country as diverse as this one in this modern age? The Court, acting as a super legislature, should therefore periodically adjust the Constitution. The other side says no, we should at least continue the charade of pretending to abide by its requirements.

More important in death than in life

When news of Ruth Bader Ginsburg’s death broke in the press the President was giving a speech to a group of iron ore miners in upper Minnesota. When his speech ended the press asked him for a comment about her death. Which was his first notice of it. He said,

She led an amazing life. What else can you say? She was an amazing woman, whether you agreed or not. She was an amazing woman who led an amazing life. I’m actually saddened to hear that.

She was an amazing woman with 27 years on the court. Her opinions shaped the outcome and presentation of many big cases. Maybe she will prove more important in death than in life. She was and still is the centering force of the progressive legal thought that dominates politics today. She was the leader in the actions of the court to reshape the Constitution to address the issues of today with a new rule of law.

So, her death might make her even more important. Because it will force Joe Biden out of hiding and into the open. During the debate scheduled for September 29, one can scarcely see how he can avoid talking about it. If I were Donald Trump, I would ask him straight out who his potential nominees are. I read whereBreitbart asked himthat question and he said the public doesn’t need to know that. But hopefully he will not be able to get away with that answer much longer.

Does Barack Obama want the post?

If Barack Obama wants the job of Supreme Court Justice, it is his for the asking should Biden win election. I have no idea if Obama wants a real job or not. But Joe Biden would not be able to refuse him if he does. Senate confirmation would then become just a formality. If he can serve as President, he can certainly serve on the court.² I doubt if he wants it though, because he seems to have a pretty good life right now without working.

President Trump, fill that seat!

What about President Trump? Should he decline to nominate until and if he wins reelection? Absolutely not is my answer. And if the shoe were on the other foot, I promise you the Democrats would go forward. A culture war rages in our minds and in our streets, which means we must take any advantage we have. He seems to agree because on September 19^th he tweeted the following:

We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!

So, there it is. Be intends to nominate and fill the position if the Senate is wiling. Right now, I believe the announcement is scheduled for tomorrow, the 26^th.³

The people will judge

The electorate will judge both Presidential candidates on this nomination and how each reacts to his opponent’s nominee. The people will also judge the Senate on this nomination. I would assume that senators up for reelection are now adjusting their campaigns accordingly. Not many federal appointments have been more important, if any. Despite all the threats of violence, of impeachment etc. he is going forward. It is most interesting that the Speaker of the House threatened impeachment proceedings because he might dare to do what he is constitutionally required to do. If she does, that will help assure Biden’s defeat because voters will see it for what it is.⁴

A worthy successor to Ruth Bader Ginsburg – Amy Coney Barrett

Who then, should he nominate? Who has the intelligence and fortitude for the job and who has the determination to survive the Democrat character assassination that is the nomination process? That is the easy part folks if you are only going to consider those who have some prospect of being confirmed. The choice is Amy Coney Barrett who currently serves on the 7^th Circuit bench. She is a graduate of Notre Dame and the law school of the same university.

There are very few criticisms of Judge Barrett, at least legitimate ones.⁵ The primary Democrat criticism is that she is a devout Catholic and lets her Catholic faith guide her decisions.

Well God forbid that we should have a member of the court who believes in God and acts accordingly.

If that is the only thing her opponents can come up with then she must be a pretty good jurist. She is by far the brightest and most qualified available in my opinion. She deserves to be on the court. And it would be a shame if the deep prejudice of Democrats eliminates her because she is Catholic. She represents a chance to showcase before the American public a brilliant legal mind but also a mother of seven including one with special needs and two adopted from Haiti. Indeed she could quite possibly reinvigorate the Republican base with her energy and intellect paired with her calm demeanor.

No more David Souters!

Judge Barrett is known to be pro life in her views. But maybe the American public and enough Senators are tired of the George W. Bush and David Souter say one thing then do another versions of leaders. Give us instead this woman to whom the inherent dignity of all life is no mere slogan or academic concept. Women come in all shapes and sizes just as men do and they don’t necessarily think alike. As a famous lawyer named Ruth Bader Ginsburg once said.

We need her on the court at this critical point in its history. There is no reason whatsoever why she should not be nominated and confirmed. Although I would not be shocked to see the assassins come after her character.

We have a war to fight

Finally, folks, I am not telling you Judge Barrett is perfect or that she has never made a decision which I disagree with. I know about her decision supporting the right of leadership to order a lockdown. I am also aware that our culture war was lost when we surrendered our children to the enemy at the school and university levels. What I am telling you is that we must fight on anyway. And at this time she is the best candidate that has a reasonable chance of being confirmed.

At least that’s the way I see it.

Until next time folks,

This is Darrell Castle.

Editor’s Notes

1 This essay appeared on Monday 28 September. Therefore, President Donald J. Trump “overtook” this essay by nominating someone to the Court on Saturday 26 September.

2 President William Howard Taft set the precedent for Presidents moving onto the Court, when he became Chief Justice.

3 Indeed the President has nominated a successor to Ruth Bader Ginsburg. Her name: Justice Amy Coney Barrett of the Court of Appeals for the Seventh Judicial Circuit.

4 Furthermore, House Republican Leader Kevin McCarthy counter-threatened to move to remove the Speaker from her chair. But Rep. McCarthy no doubt recognizes that only the people, voting in their Districts, can remove a Speaker. The day when a Speaker Jim Wright could lose his Speakership and office through a financial scandal has long passed.

5 Her critics have brought an illegitimate objection. She has seven children, including two she adopted, who came from Haiti. Now her critics would have us believe she abducted those children!

About the image

“File:Amy Coney Barrett.jpg” by Rachel Malehorn is licensed under CC BY 3.0