by Mitch Kokai
Senior Political Analyst, John Locke Foundation
While we did not agree with many of Justice Ruth Bader Ginsburg’s views about the Constitution or the judicial function, we never doubted her industry, dedication, gumption, civility, or patriotism. We send our condolences to all who mourn her passing.
Justice Ginsburg almost certainly had more fans than any other justice in U.S. history, with her great friend Justice Antonin Scalia in second place. The wide acclaim, and wide opprobrium, for these justices is a sign of something that has gone wrong in our political culture, in which the Supreme Court looms entirely too large. Her death has therefore led not just to mourning but to the start of a political convulsion. …
… The notion that Republicans should calm troubled waters by standing down is a little more beguiling. But it should also be rejected. Supreme Court nominations have become incendiary events because the Court has strayed so far from its proper constitutional role. …
… The rift between constitutional law and the Constitution has done great damage to our political culture. It would be perverse to give up a chance to pull them back together because of that damage. And it would be a mistake to allow the risk of future progressive mischief to cause conservatives to refrain from taking that chance.
President Trump, like President Obama in 2016, has the constitutional power to nominate a Supreme Court justice. He should exercise that power to put forward someone with a track record of respect for the law and for its limits on the judiciary. The Senate, as it did in 2016, will then have the power to decide whether to proceed. If the nominee meets threshold conditions of quality and judicial philosophy, we hope it will schedule hearings expeditiously and vote whenever enough time for deliberation has passed.