The death of Justice Ruth Bader Ginsburg occurs when our country was already at a crossroad.  By historical accident, there has been a “Republican” majority on the court since 1972.    For the past thirty years, there has been a movement among conservative interest groups and supportive lawyers to rewrite the Constitution to undermine the protection given to constitutional rights during the Warren Court and to undermine the legal consensus that arose from the New Deal era.

The Constitution says very little about the structure of the judiciary.  It says that there will be a  Supreme Court with some cases on which the Supreme Court has original jurisdiction.  For the most part, however, the Constitution left it to Congress to fill in the details.  And, while the justices are appointed by the President with the “advice and consent” of the Senate, the Constitution is silent on the details of the confirmation process.

The latter issue is currently front and center.  When there was a vacancy in February 2016, Moscow Mitch cited a non-existent Biden rule as barring any confirmation hearing in a presidential election year.  This year, Moscow Mitch has put forth a modified version of the rule holding that confirmation hearings are only barred if the Senate is controlled by the opposing party.  Of course, that is not a principled rule.  It is a rule about power.  Namely, that the Senate majority gets to do what it wants regardless of what is in the best interest of the American people. Continue Reading...