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Of RBG, the Supreme Court, and Vacancies...Oh My!

This past week saw the death of Supreme Court Justice Ruth Badger-Ginsburg (commonly referred to as “RBG”). Justice Ginsburg died last Friday, September 18, 2020 from a prolonged battle with pancreatic cancer at the age of 87. She was appointed to the court by President Clinton in 1993 and has been a stalwart defender of gender equality and women’s rights. She was a remarkable woman who led a very accomplished life overcoming her own form of gender discrimination as she was coming up the legal ranks. Myself, as a conservative, there are some areas in which I would agree with RBG, and many areas in which I would disagree with her (most notably her “pro-choice” stance in regards to abortion).

However, my concern isn’t to talk about her life, but to talk about the aftermath of her death. You see, in case you haven’t noticed, we’re nearing the end of one of the most contentious presidential election years I’ve ever witnessed. RBG’s death came with just 46 days left until the election. Because RBG was considered one of the members of the “liberal wing” of the court, naturally, democrats are saying that her seat on the court shouldn’t be filled until after the election. Republicans, on the other hand, are saying that the seat should be filled, and filled now!

What muddies the waters even more is that in 2016, a nearly identical set of circumstances occurred. On February 13 of that year, Justice Antonin Scalia died. Then President Obama wanted to appoint Judge Merrick Garland to replace Scalia on the bench, but senate majority leader Mitch McConnell (R-KY) refused to hold hearings on Judge Garland. In fact, many republicans were “quoted” as saying that in an election year, we should let the people decide who will appoint Scalia’s replacement. Some of these very same republicans are now saying that RBG’s vacancy should be filled.

This opens up the republicans to charges of “hypocrisy.” How could they deny a hearing to Judge Garland in 2016 266 days out from the election, but then be in favor of appointed a replacement for RBG in 2020 only 45 days out from the election? Seems like a clear cut case for hypocrisy, right? Let’s examine this.

The first thing to say is that the same democrats who are accusing republicans of hypocrisy in 2020, were the ones saying “fill the seat” back in 2016. So the charge of hypocrisy seems to cut both ways (welcome to the world of politics). The point being, politicians are politicians. Now you might say, “Carl, you’re a pastor. How can you be in favor of ‘naked hypocrisy’ in American politics?” Well, I’m not in favor of “naked hypocrisy” in American politics. I am just simply stating the facts as I see them. This is the “partisan battle” we see happening everyday before our eyes. Should we expect better from our politicians? Yes, absolutely. But that’s not the reality we live in, so we have to deal with what we have.

Secondly, there is the “precedent” issue. To hear the rhetoric, what is being proposed is “unprecedented” in American history. However, 29 times in our history there has been a Supreme Court vacancy in an election year. Each of these 29 times, the sitting president has nominated an individual to fill that vacancy. The only difference is whether or not the senate has confirmed the nominee. In a majority of the cases, whether or not the senate as confirmed the nominee has been largely determined by which party controls the senate. When the president’s party has control of the senate, the nominee has been confirmed the vast majority of the times. When the opposition party has been in control of the senate, the president’s nominee has not been confirmed the vast majority of the time.

Why does all of this matter? In general, it speaks to the “will of the people.” In 2014, Americans voted to give the senate to the republicans. The republicans maintained control in 2016 and in 2018. In part, one could say, the American people made a decision as to which party controls the confirmation of Supreme Court nominees. Similarly, when the country elected Donald Trump as president in 2016, one could say, that there was a mandate as to what kind of Supreme Court justices the people wanted nominated. So it makes sense why the republicans didn’t confirm Merrick Garland, but are willing to confirm whomever President Trump nominates (and vice verse the democrats).

Another question can be asked of me, “Carl, being a pastor, how can you be in favor of such ‘naked partisanship?’” In general, I’m not. But there is an ideology, a philosophy, behind the parties. I am in favor of the judicial philosophy to which the republicans hold. That philosophy is that the Supreme Court should judge laws based on their constitutionality as understood by the framers of the constitution. In other words, I do not believe that the U.S. Constitution is a “living document” that needs to evolve to fit our modern understanding. I believe the Constitution set forth limits on the power and reach of government as put forth in their enumerated powers. The Constitution also holds forth as sacrosanct the rights enshrined in the Bill of Rights. Conversely, I do not agree with the judicial philosophy of the Democratic Party. They generally tend to nominate justices who will interpret laws and the Constitution in light of current thinking on “social justice,” “economic justice,” etc.

A final question can be asked of me, “Carl, aren’t you espousing an ‘end justifies the means’ argument?” No, and let me explain why. The U.S. Constitution (Article II, Section II) grants that the president shall nominate individuals to the Supreme Court and that the senate shall provide their “advice and consent.” It is fully within the constitutionally mandated authority of the president to nominate a person to the Supreme Court, and for the senate to confirm (or not confirm) that nomination. The fact of the matter is that in this particular case I happen to approve of whomever would be nominated. If the parties were reversed, I would not be happy, but there is no constitutional argument to be made against such a situation. Now do I wish that the rhetoric of our elected politicians were more honest and less partisan? Absolutely! But I can only hold my own senators (Ben Sasse and Deb Fischer of Nebraska) accountable for any hypocrisy in their speech.

In closing, what is disconcerting to me about all of this is the importance we, as a people, place on the Supreme Court. We’ve invested these nine individuals with so much mystique and power that they’re almost seen as “holy seers” or “sacred prophets.” The fact of the matter is that they, like all of us, are flawed, sinful individuals. They need the forgiveness of sins just as much as the next person. Though they may be esteemed members of the highest court in the land, they are all under the sovereign control of THE Supreme Judge, God, and His Son, Jesus Christ. As Christians, we should be concerned with the goings on of our nation, but the Bible reminds us that we are “in the world, not of the world” (John 17:11, 14). Meaning we live in this world, but our citizenship “is in heaven” (Philippians 3:20). As such, we should have minds that are “seeking those things which are above” (Colossians 3:1). This is difficult to do when we see all of the craziness going in in the world, but one of my favorite verses is this: “In the world, ye shall have tribulation, but be of good cheer, I have overcome the world” (John 16:33). Go forth in the knowledge that your Lord and Savior, Jesus Christ, has overcome the world, and that through Him, we are all overcomers!

~Pastor Carl