Controversy at filling RBG’s seat

In this world nothing can be said to be certain, except death and taxes. Benjamin Franklin often is credited with originating that idiom, although at least a couple of writers earlier in the 18th century had used the phrase. I propose amending it: The only certainties are death and politics.

On Friday night, Justice Ruth Bader Ginsburg died. She was 87 and had twice survived cancer, so her death was not surprising. Neither is the fact that the process for nominating and confirming her successor will be full of politics.

Justice Ginsburg had a remarkable life, including a great career in the law. A native of Brooklyn, she was a brilliant student at Cornell and Harvard Law School before receiving her law degree from Columbia. While establishing herself as the leading academic authority on women’s civil rights, she was a highly successful, muchadmired activist and advocate, winning five of six cases before the Supreme Court. President Jimmy Carter nominated her to the United States Court of Appeals, and President Bill Clinton promoted her to the Supreme Court, where she was the second woman on the highest court. Justice Ginsburg was often praised as a judge’s judge, but she also was revered by many women, according to a headline as a “feminist icon.”

It is likely that President Trump will nominate a successor soon after Justice Ginsburg’s burial. Few provisions in the Constitution are more simple: The president may nominate anyone he wants, subject to the advice and consent of the Senate.

This is a troubling, but certain, sign of our time.

Recent events are instructive. Several months before the presidential election of 2016, Justice Antonin Scalia died unexpectedly, President Barack Obama nominated a successor, Merrick Garland, and the Republican leadership in the Senate refused to consider the candidate, arguing that the voters should decide who would fill Scalia’s seat. Now, Justice Ginsburg is dead, and the Senate’s Republican majority leader has already announced that hearings will be held and a vote will be taken before inauguration day in January. Is that hypocrisy? Of course, but I am a realist. The Senate Republicans were able to stonewall Garland’s nomination because there was no political cost. They may have equal success this year.

The media is already speculating that the leading candidate is Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit. Barrett is a native of New Orleans but has lived for many years in Indiana, where she went to Notre Dame Law School and later served on its faculty. After law school, Barrett was a clerk for Justice Scalia, one of the most conservative members of the court in recent decades, so Barrett can be expected to be a reliable conservative. She is a practicing Catholic. I would expect the Senate to confirm her, but, due to its polarized politics, probably narrowly. Barrett is only 48, so she could be on the Court until 2050 or after.

We are likely heading into another era of divided national government. Democrat Joseph Biden is currently favored to win the presidency, and the Democrats are slightly favored to take control of the Senate. That would give them control of the White House and both houses of Congress, with enormous power. However, if President Trump places his third nominee on the Supreme Court, six of its nine justices will have been nominated by Republicans.

Before that happens, the controversy likely to result has some superficial similarities to another a little more than 100 years ago. In early 1916, a presidential election year, there was a vacancy on the Supreme Court, and President Woodrow Wilson, then nearing the end of his first term, nominated Louis Brandeis to the court. No one doubted the brilliance of Brandeis, the son of immigrants from what is now the Czech Republic, and he was a leading spokesman for Progressive Era causes, but his choice was controversial because he was Jewish. Following an ugly confirmation process with much anti-Semitic rhetoric, Brandeis was confirmed by the Senate 47-22, and he served with high distinction for 23 years, although many of his finest opinions were written in dissent. So were

Ruth Bader Ginsburg’s.

American democracy has few certainties. At one time, the Supreme Court was the staidest institution in the federal government. Filling vacancies on the court now often generates bitter controversy. This is a troubling, but certain, sign of our time.