Was Justice Ginsburg's death what is expected to happen?
October 1, 2020 | View PDF
What should have happened by the time you read this is that President Trump will have named a very capable, conservative female judge to replace Justice Ginsburg who died in September. The political wrangling will be on as the Republicans attempt to place another conservative leaning justice.
I would have personally disagreed with Justice Ginsburg on several legal decisions, but the fact is she was one of the most incredible legal minds of the 20th and 21st centuries. During the pandemic the United States Supreme Court has held virtual hearings. Justice Ginsburg even conducted her questioning on at least one occasion from a hospital bed a few months ago. I had the pleasure of listening to some of the SCOTUS oral arguments online. Even at her advancing age, her questions for the attorneys representing the opposing sides were as sharp and almost as intimidating as any attorney could face. Any attorney that finds their way in front of the nine justices must be on their “A” game anyway.
Look closely at Article III, Section 1 of the Constitution.
Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Note that there is absolutely no mention of the number of SCOTUS justices. The number of justices have varied from as few as five to as many as ten. However, the Judiciary Act of 1869 fixed the number at nine, which is the Chief Justice and eight associate justices. Throughout American history there have been twenty-nine instances where it was an election year or an election had been held and there was a spot to fill on the Supreme Court. Former President Obama nominated a justice in his final year in office, but the vote was held off by the Republicans. So the balance currently stands at approximately five conservative justices and three liberal justices. If President Trump is able to fill Justice Ginsburg’s seat it will be a 6-3 court. Should President Trump be re-elected, there is also the possibility of octogenarian Justice Breyer (liberal leaning) leaving the court in the next four years which could possibly leave a 7-2 balance by the end of Trump’s presidency. Democrats of course worry about Roe v Wade, gay marriage and the Affordable Care Act. There is speculation that the Democrats might attempt to “pack” the court when their next chance comes around and/ or maybe impose term limits. One former Democratic, Presidential candidate suggested five right leaning (Republican) justices, 5 left (Democratic) leaning justices and five with no political swing. I’m sorry but everyone has a political opinion even if it hinges on Roe v Wade; you either agree with a woman’s right to privacy over the potential life of a human embryo or you agree with the life of a child over that of a woman’s privacy.
In another life, I was an ultrasonographer. I saw the beating heart at five weeks gestation and it told me that the developing child was alive. Historical arguments have somewhat hinged on viability in considering the developing fetus a child. Consider an older person with a heartbeat but an inability to be viable outside of a nursing home, hospital, etc. Will that person be next in consideration of who lives and who dies? The advantage of the older person was that they had an opportunity to be born and to have a life. The voluntary induced abortion of a child means they will never have the ability to grow, to be viable and have a life. If I were king, . . . but I’m not and we have a republic form of government that in some way no matter how big or how little a particular group of people are, someone in government represents just about everyone in this country.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.
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