IS THIS THE OCTOBER SURPRISE OF THE USA ELECTIONS?

20 Settembre 2020 Pubblicato da Marco Tosatti

Marco Tosatti

Dear friends and enemies of Stilum Curiae, Prof. Leo Conti has sent us this reflection on the American lessons and the death of judge Ginsburg. Have a good reading.

IS THIS THE OCTOBER SURPRISE OF THE USA ELECTIONS?

(Dr. Leo Conti, Washington DC)

Traditionally, between the end of the summer and the elections at the beginning of November, there is an event (known as the October surprise) that ends up having considerable impact on the election results in the US. Shall we assume that, this year, this event has already occurred in September, with the death this past Friday of the 87-year old associate justice Ruth Bader Ginsburg?[1] Nominated by President Clinton in 1993, justice Ginsburg had been for years the undisputed icon of abortionists and liberals. While praying for her soul (whose judgment belongs to God alone), it cannot be denied that her legacy (whose judgment belongs also to each one of us) is one of slaughtering the innocents (the millions of babies murdered through abortion in their mothers’ wombs),[2] hitting the family,[3]restricting freedom of conscience.[4]

What will happen now? Democrats have immediately demanded that no replacement take place before the elections (and, they obviously hope, a new President is sworn in). In support of their request, they have appealed to the precedent of Merrick Garland, who was nominated by President Obama several months before the 2016 elections, but on whom there was never a vote in the senate. However, this precedent is largely irrelevant, as back then presidency and senate were in the hands of two different parties, while now they are in the hands of the same party. Moreover, as was said by senator Ted Cruz from Texas (a sophisticated lawyer and himself a possible candidate to the Supreme Court, even though he has repeatedly asserted this is not his professional aspiration), leaving justice Ginsburg’s seat vacant would be irresponsible, with the concrete possibility of a constitutional crisis as a result of a hotly contested election, and a split Supreme Court unable to take any decision, if asked to intervene.[5] (When all its positions are filled, the Supreme Court has nine justices. Before justice Ginsburg’s death, there were three women. As to religion, there were three Jews, including justice Ginsburg, and six Roman Catholics, if one numbers among them also justice Gorsuch, who was brought up in the Catholic faith but now worships within an Episcopal community.)

President Trump, as active as ever, did not waste his time. He immediately called upon the senate to proceed without delay.[6] Hence, as things currently stand, it is reasonable to assume that, at the beginning of this coming week, one of the candidates named in one of the four lists issued by President Trump over the years will be nominated.[7] (Amy Coney Barrett? Barbara Lagoa?) Whether the senate is going to confirm the presidential nominee remains an open question. In addition to shortage of time, Republicans enjoy only a slim majority (53 to 47), even though they can count on Vice-President Pence casting the deciding vote if there is a tie.[8]

How will this whole process play out and end up having an impact on the election results? American electors have always realized (and now more than ever) that the power to nominate members of the Supreme Court is a key presidential prerogative, and likewise the power of confirmation is one of the senate’s decisive tasks. The electors also know by experience how influential Supreme Court decisions are in their daily lives, and how deeply they can promote of hinder the values they hold dear to their hearts. Moreover, the confirmation hearings would be quite a visible setting for those senators who are up for election this November. (One third of the US senators are renewed every other year.) Even where there are no elections for the senate, the decisions of Democrats and Republicans regarding the new justice will galvanize their base or, conversely, may end up discouraging their electors from voting. In the end, if no other October surprise materializes, such as the availability of a (hopefully ethical)[ anti-Covid vaccine, the battle for the new Supreme Court justice is itself sufficient to alter the course of these elections.

[1] This is the Supreme Court’s press release: https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-18-20.

[2] In 2019, in a footnote to an opinion regarding an Indiana case, justice Ginsburg wrote that a woman proceeding with an abortion “is not a ‘mother’” (https://www.supremecourt.gov/orders/courtorders/052819zor_2dq3.pdf). What is she, then, biologically?!

[3] Justice Ginsburg cast one of the five votes in favor of homosexual “marriage” in 2015: https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.

[4] In Hobby Lobby (https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf), where the Supreme Court in 2014 protected religious freedom against the imposition of expenses for abortion and contraception, justice Ginsburg authored the dissenting opinion that was joined by the three other liberal justices.

[5] See https://dfw.cbslocal.com/2020/09/18/texas-sen-ted-cruz-president-trump-nominate-supreme-court-justice-ruth-bader-ginsburg-successor/.

[6] See President Trump’s tweet: https://twitter.com/realDonaldTrump/status/1307321159113936896. In accordance with Article 2.II.2 of the US Constitution, the President nominates Supreme Court members with the advice and consent of the senate.

[7] The links to the three lists of candidates issued by Trump over the years, together with the fourth list issued a couple of weeks ago, are at https://www.scotusblog.com/2020/09/trump-releases-new-list-of-potential-supreme-court-nominees/.

[8] Article 1.III.4 of the US Constitution: “The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.”