Lawrie McFarlane: Replacing Ruth Bader Ginsburg raises many questions

Ruth Bader Ginsburg, the oldest member of the U.S. Supreme Court, died last month at 87. She had suffered numerous bouts of cancer.

Ginsburg’s death has turned November’s presidential election into a potential firestorm. Not that it was ever going to be decorous. Half the country loathes Donald Trump, and considers him a wolf in wolf’s clothing.

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The other half thinks Joe Biden is senile, and considers him a sheep in sheep’s clothing. As Henry Kissinger said of the Iraq/Iran war, it’s a pity they can’t both lose.

Before Ginsburg’s death, there were four left-leaning judges on the court and five who were nominally conservative. “Nominally” because Chief Justice John Roberts hasn’t been reliably right-wing.

But if Ginsburg is replaced with a solidly conservative judge, the right/left balance becomes six to three, and the court takes on its most politically tilted posture in a generation.

The Democrats, understandably, are demanding that Ginsburg’s seat remain vacant until the election is over. Indeed, more than that, Senate minority leader Chuck Schumer has threatened that if a Trump nominee is confirmed this year, “nothing is off the table.”

This may mean that if Biden becomes president and the Democrats take the Senate, additional judges could be appointed to the court, something Franklin Roosevelt attempted but failed to accomplish.

It’s been suggested that the lower courts could also be packed with left-leaning judges. We might even see the District of Columbia and Puerto Rico elevated to statehood, ensuring four additional Democratic senators.

Notably, when Biden and his running mate Kamala Harris were asked straight out if their party would pack the Supreme Court, both refused to answer.

The reason, I suspect, is that if they replied truthfully “yes,” the Republicans would have a solid excuse for doing so first if they win the election.

So where does this leave us? Trump has already nominated a religious conservative, Amy Coney Barrett, and Senate Majority Leader Mitch McConnell has promised a vote during the current session.

But do they mean business? No doubt the Democrats will try to stall the process.

In addition, some Republican senators have indicated they might not be on board.

But supposing for a moment that McConnell can move a vote along, should he?

He’s certainly going through the motions. Not doing so would infuriate his party’s base.

On the other hand, actually confirming Barrett would enrage Democratic voters, and drive them to the polls in greater numbers than Biden’s low-energy campaign might deliver.

That said, my sense is there’s no real choice here. One of Trump’s strengths with his supporters is that he’s a man of his word. He keeps his promises, so far as a divided Congress will permit.

But one of his central commitments was to choose conservative judges. And not just name them, but get them confirmed.

Moreover it’s widely speculated that the election results will be challenged in court, unless the winning candidate chalks up an overwhelming victory.

But if RBG isn’t replaced beforehand, and the top court splits four to four, what then? Theoretically, in such a situation the lower court’s ruling is upheld. But what if there are numerous and contradictory rulings, with each party shopping for friendly judges?

Whatever happens, it’s beginning to feel like the U.S. is headed for a complete meltdown. The country is already in many respects a geritocracy. Trump and Biden are in their 70s.

Mitch McConnell is 78. The Speaker of the House, Nancy Pelosi, is 80.

The chair of the House Judiciary Committee, Dianne Feinstein, who has been leading the hearings into Amy Barrett, is 87 and clearly in mental decline.

And now we have the parties playing Russian roulette with the U.S. Constitution.

When courts are packed to ensure the “right” decision, any semblance of objectivity is gone.

When new states are proclaimed to give one party an advantage, the very fabric of the country is torn up.

And if a lame-duck administration attempts to jam through a last minute appointment to the top court, you can kiss goodbye to orderly government.

It’s almost 160 years to the day since the American Civil War began. We might see a repeat in 2021.

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