Breaking Down the SCOTUS Appointment Battle - An Epic Proxy In the War of Competing Visions of Life and Liberty

With the passing of Supreme Court Justice Ruth Bader Ginsberg last Friday, President Trump plans to make his third SCOTUS nomination by the end of this week. All indications are that he will choose a conservative constitutionalist, which is to say, someone who will simply apply the text and original meaning of the words of the U.S. Constitution to the facts of each case in rendering their opinions. In predictable fashion, the Left is in a tailspin over the unanticipated prospect that the Republican-controlled Senate will likely confirm Trump’s nominee before the November 3rd Presidential election.

While their concern in understandable, given the substantial magnitude of impact this one Justice could have on the direction of our country for decades to come, the fact remains that the President has a both a constitutional right and a duty to nominate the next Justice. And even though the election isn’t far off, the deadline for the nomination and confirmation isn’t election day – it’s inauguration day on January 20.

There is no question that the responsibility of nominating a Supreme Court Justice belongs exclusively to the President of the United States. According to Article II, Section II of the U.S. Constitution: “He [the president] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.” As the late Justice Antonin Scalia said, the Constitution “says what it says, and doesn’t say what it doesn’t say.” That President Trump and the U.S. Senate may go forward to fill this Supreme Court vacancy is crystal clear. So why is the left sounding the alarms when President Trump is just fulfilling his duties?

In 2016, following the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell (R-KY) used his caucus' numbers to hold the seat open until after the presidential election, saying American voters in the upcoming election should choose Scalia's successor. Democrats were furious at McConnell and urged him to give President Obama the opportunity to fill the vacancy. Senate Judiciary Committee Ranking Member Dianne Feinstein (D-CA) told Republicans "to do their job" and give nominee Merrick Garland "full and fair consideration." With this year’s election less than six weeks away, the Democrats have changed their tune and have demanded that Justice Ginsberg’s seat not be filled until after the presidential inauguration in January 2021. The difference now is that the American people voted to  elect President Trump and reelected a Republican majority in the Senate in 2016 and then expanded the Republican-majority Senate in 2018, indicating their desire to ensure that the appointments in the federal judiciary, including SCOTUS, would be filled by conservatives.

The fight over Justice Ginsburg’s now vacant seat obviously has little to do with what happened in 2016. In reality, it’s about the long-term impacts the person who fills this vacancy will inevitably have on the law and society. For both political parties, the stakes couldn’t be higher. The upcoming election is projected to be very close. And if the results are contested – which they are expected to be – the Supreme Court could determine the outcome, which provides all the more reason why Republicans need to fill this seat now to avoid a constitutional crisis with the real potential of a Court deadlocked at 4-4. (Remember, it wasn’t very long ago when the SCOTUS decided the 2000 Presidential election in a 5-4 decision.)

It’s also apparent that the far-left socialists have been taking over the Democrat Party, so it is even more important to place constitutionalists on the federal benches. Make no mistake, if the Left is allowed to nominate the next Supreme Court Justice, it will become virtually impossible to continue protecting those fundamental rights guaranteed in the Constitution – especially the right to LIFE.

President Trump will almost surely choose a Supreme Court justice who views the right to life, including for unborn children, as the most fundamental right protected by the Constitution. As Sen. Josh Hawley (R-MO) rightly noted, the time has come for the conservative and pro-life movements to reshape the court by choosing a justice who will rule based on what’s actually written in the Constitution and not based on what they think it should say. This is also an opportunity for conservatives to revisit and hopefully overturn the infamous Supreme Court decision Roe v. Wade that created a supposed constitutional right to kill one’s unborn child. In the 47 years since this ruling, over 60 million abortions have been performed in the United States, and the U.S. has become one of seven countries to allow abortion for any reason, putting our nation in the same category as China and North Korea -- two of the greatest known violators of human rights in the world.

Regrettably, there seems to be no foundational moral, cultural, or political issue over which the Supreme Court has not taken control as self-appointed final arbiters. It’s a terrible sign for our society that just nine people – appointed for life – should have acquired so much authority to make decisions that should rightly belong to state governments, to other branches, or to the people. Nevertheless, we are all forced to care a whole lot about who these people are because of all that we know they can, and likely will, decide for us. Given just how much is on the line, those of us who care about fundamental liberties and the rule of law should be very excited about this new unexpected potential for a deciding Justice who respects these too.