Injured animals are dangerous, even lame ducks.
Imagine, for some unlikely reason, Trump did not nominate a replacement for Ruth Bader Ginsburg before election day. Then he loses the election and the Democrats win enough seats to take over the Senate. Between election day on Tuesday, November 3, 2020, and inauguration day on Wednesday, January 20, 2021, (78 days) he would have the exact same constitutional authority he has today. Until January 3, 2021, when the new Senate will be sworn in, the lame duck Republican Senate would have the same authority it has now.
These lame ducks, in a brazen middle finger to the incoming party, could still nominate and confirm a replacement for Ruth Bader Ginsburg.
Certainly, such a brazen political stunt would be an unimaginable and unprecedented and unconstitutional act that the Founders would have abhorred.
Something arguably even worse happened after the 1800 presidential election and some of the Founders were an active part of it.
John Adams lost the 1800 election to Thomas Jefferson. Adams’ party, the Federalists, lost control of the Senate in the same election. Yet, before the new president and the new senate were sworn in, not only did the lame duck Federalist president nominate dozens of new federal judges and the lame duck Federalist Senate quickly confirmed them all, the lame duck Federalists passed what came to be known as “The Midnight Judges Act” to CREATE the very judgeships they then filled.
Yep, this was an outright middle finger to the yet-to-be sworn in Jefferson and his Democratic-Republicans.
Jefferson was inaugurated on March 4, 1801. Just TWO DAYS earlier, on March 2, Adams nominated almost 60 Federalists to the federal judiciary, (including William Marbury, who’s case, Marbury v Madison, became rather important). The outgoing Federalist Senate approved the appointments all at once on March 3, one day before Jefferson’s inauguration.
How could Adams have done such a thing? Well, “notwithstanding the people at the polls had just expressed a contrary opinion, Mr. Adams conceived it to be his highest duty to ‘save the Country’ by filling the judicial offices with men who could be depended upon to thwart the malevolent designs of the enemy.” (A History of the Office of Justice of the Peace in the District of Columbia , Charles S. Bundy.)
That “enemy” was the opposing political party, led by Jefferson. This might sound familiar.
There is nothing new under the yellow dwarf star that heats our planet.
All of the wailing and indignation about a potential Trump replacement for Ginsburg is not about ethics, precedent, honesty, decorum or any such high-minded concept. Nevertheless, these high-minded concepts will be thrown about like daggers against a gang of intruders attempting to desecrate a holy shroud.
It is all a charade. A charade to hide the real and only issue: Raw political power granted in the Constituion. Adams and the Federalists had the power in 1800. Trump and the Republicans have it now.
Ethics, precedent, honesty and decorum will be draped over the actual issue, raw political power, like flowers over Florence Pugh in Midsommar.
The real issue is far from honorable or dignified or high-minded. It is merely power. And, more precisely, who gets to wield it. But like a broadsword, it has two sides.
And the Democrats, if they gain control, will use it. They are threatening to pack the Court already.
If they gain the power and gather the political will, they will be entirely within their legitimate constitutional authority to pack the Supreme Court with as many new Justices as they can muster. If they have the best hand, they win the pot. The Republicans had the best hand in 2016 and refused to confirm Merrick Garland. Republicans have the best hand now and can confirm Trump’s nomination, even as lame ducks. John Adams and the Federalists demonstrated how in 1801.