Lot's of commentary about the passing of Justice Ginsburg. Some of it laudatory or appropriately celebratory of her life. Much of it not really celebrating Ginsburg but dropping immediately into the machinations of her replacement.
Many, many threadbare perspectives. Without having read much yet or any real analysis, my opening assumption is that Republicans may choose to try and fill her seat immediately, before the election. I see a lot of claims of hypocrisy but those claims seem untenable.
By and large, Republicans supported the old filibuster (60 senatorial votes for a variety of motions including appointments) which was discarded by Harry Reid in 2013. I thought it a mistake to abandon the filibuster then and think so now. The filibuster explicitly cultivates negotiation and reconciliation between positions. Majority vote makes everything a matter of simple vote counting.
That change has not been in place long enough to establish any new traditions. As Schumer pointed out in 2016, some 16 Supreme Court appointments have been made by sitting presidents in the last year of their term.
Obama sought an appointment in the last year of his second term but faced a majority Republican Senate. They refused to advance the nomination, anticipating they might win the White House, as they indeed did. Their justification was that no appointment should be made close to an election when the White House and Senate are held by opposing parties.
It is a justification, not a requirement and not even yet a tradition. Their stated intent to fill the empty seat before the election is not hypocritical by this justification. The White House and Senate are held by the same party.
Whether it is politically wise to do so is not patently obvious. We'll hear a lot of analysis of that in the next few days.
What intrigued me was a claim by Ginsburg's granddaughter, Clara Spera. She has stated that Ginsburg wrote her a letter stating "My most fervent wish is that I will not be replaced until a new president is installed."
Well, perhaps. The reports are coming from the left and I have not seen the letter. We'll see.
It was the wording which struck me as odd. And granted, I sometimes overanalyze words and meanings, seeing meanings which aren't really there.
At first I assumed this might have been a loose paraphrase, so a greater discount would have to be applied. Paraphrases can be manipulated, people hear what they want to hear.
But then I saw that this phrasing was supposed to have come from a letter. Hmm. Ginsburg was no slouch. That wording seems remarkably imprecise.
I am glad to notice that Ann Althouse also seized on the words but she is more focused on the implications of "installed." That is interesting but not where I focused.
I focused on "My most fervent wish is that . . . " I am interested in the governance issue. If she were focused on the procedural aspect of things, she might have said "My most fervent wish is that I will not be replaced until after the election." In this rendering, one can assume that she is concerned about the legitimacy of the transition. Making the appointment after the election and after the winner takes office perhaps improves the legitimacy regardless of the outcome of the election. Even if Trump is reelected, it will be obvious that whomever fills the seat will be fully legitimate.
But the actual claimed wording is "My most fervent wish is that I will not be replaced until a new president is installed." A new president installed can mean that Ginsburg wanted a different president to make the appointment of her successor. More explicitly, that Ginsburg did not want Trump to make the appointment.
That seems a very partisan wish from someone whom I have always assumed to be a great respecter of institutional processes and traditions and while fervid in her arguments, not necessarily partisan.
The more I thought about it, the more there seemed to be a secondary implication. By sharing this letter in advance of her death, was Ginsburg hoping to shape the selection of a new Supreme Court member. If that were the case, it sounds profoundly anti-democratic. Once again a supposedly independent Washington insider seeking to game the democratic system by shaping the outcome to her wishes.
None of this rings true to me of the Ginsburg of repute. I cannot imagine that she would seek to shape who follows her. It is the people's choice via their elected government. Not a seat to be handed down by the preferences of the predecessor.
And while one might infer Ginsburg's political preferences I cannot imagine her putting her thumb on the scale and publicly wishing her appointment to be made by a Democrat.
Much-ado-about nothing perhaps. Maybe the words were not written or spoken with precision. Perhaps they are not being accurately paraphrased by the presumably activist granddaughter. Maybe it is the mainstream media grasping at straws.
But words are important and precision in speaking, writing, listening, and paraphrasing are valuable skills.
Something does not ring true here, regardless of what the media is reporting.
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