What Should President Trump Do?
Justice Ginsburg Could Have Retired Like O’Connor
Who Will Determine If The Nominee Is Approved?
History Of The United States Supreme Court
President Trump’s Judicial Appointments- 28.7% Of All Before End Of His Term

The outcome of elections has consequences for the winners and for the losers. 

According to polling, the majority of those asked are not favoring a possible change to the 1973 ruling in Roe v. Wade (410 U.S. 113) in which the United States Supreme Court ruled (7-2) that the United States Constitution protects a pregnant woman's right to choose to have an abortion without excessive government restriction.  A reversal of Roe v. Wade would result not in a national right, but each of the fifty states having far greater latitude to implement laws, regulations, and policies as to accessibility by a woman to an abortion.  Fifteen years later, support remains inconsistent for the 2005 ruling (5-4) in Kelo v. City of New London (545 U.S. 469) in which the United States Supreme Court ruled that eminent domain could be used to transfer land from one private owner to another private owner for the furtherance of economic development.  Then Mr. Donald Trump, real estate developer, supported the decision by the court. 

The Honorable Donald Trump, President of the United States, has confirmed he will nominate a woman to replace eighty-seven-year-old Associate Justice Ruth Bader Ginsberg who died on 18 September 2020.   

Useful to remember that the Trump Administration is in part because the campaign of his opponent in 2016 was dismal. 

An important consideration about President Trump’s nominee to the United States Supreme Court is how the nominee will view, consider her gender during the formulation of her judicial votes and opinions.  Will her life experience, and the experiences of women throughout the history of the United States be for her foundational, influential; should they carry weight at all?  

The passing of Associate Justice Ginsburg is for those citizens who have already voted and for those who intend to vote a shock to their personal political intellectual infrastructure.  Unfortunately, those who already voted can do nothing about their vote, even if they wanted to.  One reason early voting is problematic.   

For the next weeks until polls close on 3 November 2020, the United States, its citizens, will be subject to a daily political defibrillator- some voters will require its voltage because they are positively orgasmic at the prospect of a Trump Administration nominee while those opposed will require a jolt because that same prospect has caused their heart to cease functioning- or at minimum miss its recommended beats.  

Important for voters to know in advance of 3 November 2020 how the one hundred members of the United States Senate will vote prior to voters re-electing them- those who are up for re-election in 2020 and those who will be in 2022 and 2024; and for voters to know how candidates in 2020 for seats in the United States Senate would have voted had they be members of the body.   

For legislators, accountability is defined by voting.  The United States Senate has not managed to hold hearings about and then pass the twelve annual spending bills required to operate the United States government.  Force accountability; require a vote. 

Unfortunately, in those states where early voting commenced, there are voters who cast their ballots prior to knowing of the death of Associate Justice Ginsburg.  The unknown event, such as the death of a member of the United States Supreme Court, is precisely why early voting is dis-enfranchising rather than providing greater opportunities for citizens to vote.  A vote taken early only contributes to maintaining the ignorance of the electorate and maintaining a political status quo. 

What Should President Trump Do 

President Trump should announce soonest his nominee to replace Associate Justice Ginsburg.   

The nomination should then be presented promptly to the United States Senate where then the twenty-two members of the Committee on the Judiciary would meet the nominee, review the nominee’s background, schedule and hold a hearing, then vote whether to send the nomination to the one hundred members of the United States Senate for them to vote on the nomination… as soon as possible prior to 3 November 2020. 

Both political parties should “pay a political price” for how they coordinate the process to replace Associate Justice Ginsburg.  That cost is their vote- to be known prior to election day.   

Associate Justice Ginsburg was a political appointee for a position with a life tenure.  But, serving until death is not a requirement.  In her absence, another political appointee must be nominated and then confirmed or rejected.  Absent nine Supreme Court justices, a case with a four-to-four tie results, with conditions, in the lower court ruling remaining in place. 

Important to support process and balance.  The U.S. political process- its chosen political process, and those whom we have chosen to manage it- the elected and appointed classes, have botched it during the last thirty years rather than enhance it, balance it, seek to be accommodative; strive for a society, an electorate devoid of political ignorance and who embraces becoming a part of the political process.  The failures have been epic; the successes far too fleeting.  

The United States remains, as it has for decades, a needlessly and some would posit recklessly polarized society.  Primary culprits?  The voters, those who the voters select for office, a lack of term limits for all offices, the advent of cable television outlets and “social media” applications devoted to delivering too much opinion, too much drama, too much debate, too much entertainment and not enough information.  Citizens should first want to be informed rather than be entertained.  The delivery of information has become about using the fewest characters or words or images instead of quantities necessary to educate. 

For President Trump, personnel decisions are often made based upon appearance (how he/she looks on television- “central casting” he has shared) rather than an individual’s competence; and for him a decision which he views solely in terms of benefiting his prospects for re-election.   

Is more valuable the image of him at The White House with The Honorable Amy Coney Barrett (48 years old), Judge of the 7th Circuit Court of Appeals, a white woman (and devout Catholic) born in New Orleans, Louisiana, with seven children (two adopted; one with special needs) versus an image of him at The White House with The Honorable Barbara Lagoa (52 years old), Judge of the 11th Circuit Court of Appeals, a white woman (and devout Catholic) born in Miami, Florida, of Cuban descent with three children?  How either of the women will vote during their what could be a multi-decade tenure is of less importance to President Trump than is how they “look” and “perform” through the closure of last voting location on 3 November 2020.  For the President, his focus may be about whether him being with a woman surrounded by seven children looks better than a woman being surrounded by three children?   

There could be a surprise- President Trump nominates an African-American female to be Associate Justice of the United States Supreme Court.  That would be a “first” and President Trump gravitates towards precedents.  Sometimes that gravitational pull is due to the President enjoying the spectacle; but, on other occasions, disruption to the status-quo is required.  A bonus for the President would be seeing which members (in both parties) of the United States Senate would vote against the first female African-American. 

Since 1937, the presidential term has commenced on 20 January at 12:00 pm and ended four years later at 12:00 pm on 20 January.  Members of the United States Senate serve six-year terms.  The President and the United States Senate need to do what they are hired to do.  We should know this coming week. 

Ginsburg Could Have Retired Like O’Connor 

From 2007 to 2015, the Democratic Party controlled the United States Senate- they controlled the rules and could change them, as they did, relating to votes required to move forward judicial nominees with respect to the use of the filibuster procedure (sixty votes required to end debate).  The Honorable Barack Obama (D), President of the United States, served from 20 January 2009 to 20 January 2017.  However, President Obama would likely not have felt bound to nominate a Jewish woman for a “Jewish seat” on the United States Supreme Court- he would probably have nominated a woman of African-American descent.  

Judge Sandra Day O'Connor (90 years old; served from 1981-2006), nominated by The Honorable Ronald Reagan (1981-1989) as the first female to serve as an Associate Justice of the United States Supreme Court, retired at seventy-six years of age.  Her successor, Judge Samuel Alito, was nominated by The Honorable George W. Bush, President of the United States (2001-2009).  

Since the Supreme Court was established in 1789, 114 people have served on the Supreme Court with twenty-one of the 114 serving longer than Associate Justice Ginsburg.  Twenty-seven were seventy-eight or older when ending their term in office. 

Associate Justice Ginsburg had numerous cancers.  Colon cancer in 1999.  Pancreatic cancer in 2009.  Cancerous nodules removed from her left lung in 2018.  In 2019, a tumor was detected on her pancreas.  In 2020, received treatment for a cancer recurrence to her liver. 

Both her supporters and detractors define Associate Justice Ginsberg as immensely qualified and as proudly political (and politically astute)- believing the United States Constitution to be a “living document” subject to revision as society requires. 

Associate Justice Ginsburg could have retired during the years of the Obama Administration when the Democratic Party controlled the United States Senate.  That decision, which could be construed as selfish, has proven costly.

Who Will Determine If The Nominee Is Approved?

United States Senate Committee on the Judiciary (BOLD- up for re-election on 3 November 2020) will hold a multi-day hearing and then vote to approve or disapprove the nominee, who would then be subject to the “advise and consent” provision of the United States Constitution by the one hundred-member United States Senate.

Majority Members (12)
Graham, Lindsey (SC), Chairman
Grassley, Chuck (IA)
Cornyn, John (TX)
Lee, Mike (UT)
Cruz, Ted (TX)
Sasse, Ben (NE)
Hawley, Josh (MO)
Tillis, Thom (NC)
Ernst, Joni (IA)
Crapo, Mike (ID)
Kennedy, John (LA)
Blackburn, Marsha (TN)

Minority Members (10)
Feinstein, Dianne (CA), Ranking Member
Leahy, Patrick J. (VT)
Durbin, Richard J. (IL)
Whitehouse, Sheldon (RI)
Klobuchar, Amy (MN)
Coons, Christopher A. (DE)
Blumenthal, Richard (CT)
Hirono, Mazie K. (HI)
Booker, Cory A. (NJ)
Harris, Kamala D. (CA)

History Of The Supreme Court

Since the Supreme Court was established in 1789, 114 people have served on the Supreme Court with twenty-one of the 114 serving longer than Associate Justice Ginsburg. Twenty-seven were seventy-eight or older when ending their term in office.

From Wikipedia:

“The Supreme Court was created by Article III of the United States Constitution, which stipulates that the "judicial power of the United States, shall be vested in one Supreme Court," and was organized by the 1st United States Congress. Through the Judiciary Act of 1789, Congress specified the Court's original and appellate jurisdiction, created thirteen judicial districts, and fixed the number of justices at six (one chief justice and five associate justices).”

“Since 1789, Congress has occasionally altered the size of the Supreme Court, historically in response to the country's own expansion in size. An 1801 act would have decreased the Court's size to five members upon its next vacancy. However, an 1802 act negated the effects of the 1801 act upon the Court before any such vacancy occurred, maintaining the Court's size at six members. Later legislation increased its size to seven members in 1807, to nine in 1837, and to ten in 1863. An 1866 act was to have reduced the Court's size from ten members to seven upon its next three vacancies, and two vacancies did occur during this period. However, before a third vacancy occurred, the Judiciary Act of 1869 intervened, restoring the Court's size to nine members, where it has remained since.”

“The number of justices on the Supreme Court changed six times before settling at the present total of nine in 1869.”

“Its membership, as set by the Judiciary Act of 1869, consists of the Chief Justice of the United States and eight associate justices, any six of whom would constitute a quorum. Article II, Section 2, Clause 2 of the Constitution grants plenary power to the President of the United States to nominate, and with the advice and consent (confirmation) of the United States Senate, appoint justices to the Supreme Court. Justices have life tenure, and receive a salary which is set at $255,500 per year for the chief justice and at $244,400 per year for each associate justice as of 2014.”

“While the justices of the Supreme Court are appointed for life, many have retired or resigned. Beginning in the early 20th century, many justices who left the Court voluntarily did so by retiring from the Court without leaving the federal judiciary altogether. A retired justice, according to the United States Code, is no longer a member of the Supreme Court, but remains eligible to serve by designation as a judge of a U.S. Court of Appeals or District Court, and many retired justices have served in these capacities. Historically, the average length of service on the Court has been less than 15 years. However, since 1970 the average length of service has increased to about 26 years.”

Expansion of the number of Associate Justices is a stupid idea. Reason- if the Democratic Party controls the United States Congress and adds one or two Associate Justices, what is expected to happen when the Republican Party controls the United States Congress? Tit-for-Tat. Does the country want twenty-five, fifty-one, one hundred-and-one members of the United States Supreme Court?

President Trump’s Judicial Appointments- 28.7% Of All Before End Of His Term

The Republican Party since 20 January 2017 has focused upon the selection of judges- District Court, Court of Appeals, and Supreme Court. That has been effective strategy.

President Trump Has Appointed 216 judges with thirty-four nominations awaiting decision by the United States Senate- and those are likely to be confirmed prior to 31 December 2020. Thus, the total number of judicial appointments by President Trump could be 250 or more by the end of his first term.

From Wikipedia:

“There are currently 870 authorized Article III judgeships: nine on the Supreme Court, 179 on the courts of appeals, 673 for the district courts and nine on the Court of International Trade.”

“As of September 17, 2020, the United States Senate has confirmed 216 Article III judges nominated by President Trump, including two associate justices of the Supreme Court of the United States, 53 judges for the United States courts of appeals, 159 judges for the United States district courts, and two judges for the United States Court of International Trade. There are currently 34 nominations to Article III courts awaiting Senate action, including 33 for the district courts and one for the Court of International Trade. There is currently 1 vacancy on the Supreme Court, 58 vacancies on the U.S. district courts and two vacancies on the U.S. Court of International Trade. There are no further announced federal Article III judicial vacancies that will occur before the end of Trump's first term. Trump has not made any recess appointments to the federal courts.”

“The total number of active federal judges is constantly in flux, for two reasons. First, judges retire or die, and a lapse of time occurs before new judges are appointed to fill those positions. Second, from time to time Congress will increase (or, less frequently, decrease) the number of federal judgeships in a particular judicial district, usually in response to shifting population numbers or a changing workload in that district. Although the number of Supreme Court justices has remained the same for well over a century, the number of court of appeals judges has more than doubled since 1950, and the number of district court judges has increased more than three-fold in that period. In addition, some district court judges serve on more than one court at a time.”

Reference Posts

It’s Just Lunch (Or Breakfast). Political Leaders In Washington Should Be Required To Share Weekly/Monthly Meals
https://www.issueinsight.org/blog/strongits-just-weekly-lunch-or-breakfaststrong

Early Voting Is Problematic; Entrenches Ignorance And Status Quo
https://www.issueinsight.org/blog/eoy41g4qeahrufjuau9hsh41k1m2rd