The battle to fill the Supreme Court vacancy left by the passing of Justice Ruth Bader Ginsburg

The sudden passing of US Supreme Court Justice Ruth Bader Ginsburg on September 18 has ignited another intense feud over the future of America’s highest court. While there was always the real possibility that 87-year-old Ginsburg might lose her years-long battle with cancer prior to the November 2020 US Presidential Election, the timing of her passing – 46 days out from the election – guarantees another bitter partisan standoff in the US Senate.

Many Democrats seemed certain that Ginsburg would live into 2021, imagining that a Democratic President would then be able to nominate a suitably liberal replacement. Unlike then-candidate Trump in 2016, Joe Biden has so far seemed less eager to make this election a referendum on the Supreme Court. Other than indicating that he would nominate an African American woman, the Biden campaign is yet to publish a list of potential SCOTUS nominees. With Trump set to announce his nominee next week, they will be under increasing pressure to do so in the days ahead.

Senate Republicans are likely to vote to confirm Trump’s nominee in the coming weeks and the predictable partisan cries of hypocrisy have already begun. Democrats argue that Republicans should not be allowed to fill a Supreme Court vacancy before the election because Republican Senate Leader Mitch McConnell refused to do so in 2016 after the death of Justice Antonin Scalia. These arguments are disingenuous.

It is at best misleading to suggest that McConnell ever refused to bring on a vote on Obama nominee Merrick Garland simply because it was an election year. At the time, McConnell and his Republican colleagues were very precise about their reasons for not filling a Supreme Court vacancy in an election year in a situation of divided government. They have also been very transparent about their preparedness to confirm a nominee in 2020.

On 22 February 2016, immediately after Scalia’s passing, McConnell noted that ‘the Senate has not filled a vacancy arising in an election year when there was divided government since 1888.’ When asked in February 2020 about the possibility of a vacancy he stated that, unlike 2016, the Senate was controlled by ‘the same party as the President of the United States. And in that situation we would confirm.’

On this point, history is on McConnell’s side. He is correct that for more than 130 years a pre-election SCOTUS nominee has not been confirmed when the Senate and White House have been controlled by different parties. He is also correct that the Senate, on nine separate occasions, has confirmed the nominee of a President from the same party as the Senate Majority before election day. In fact, sitting Supreme Court Justice Stephen Breyer was confirmed to the First Circuit in the final days of Jimmy Carter’s Presidency – after he lost his re-election bid to Ronald Reagan.

But this will not satisfy Democrats. The Democratic Chairman of the House Judiciary Committee, Jerrold Nadler, has already called for Democrats to ‘pack’ the Supreme Court with new progressive judges should they regain control of the White House and Senate in 2020. Democratic House Speaker Nancy Pelosi has even suggested that Democrats may attempt to impeach President Trump or Attorney-General William Barr in order to stymie any Senate vote on Trump’s nominee. No matter the outcome, it’s clear that another rancorous and protracted DC battle lies ahead.

The passing of any significant public figure is a time for reflection and compassion. The community should be honouring the person that Ruth Bader Ginsburg was and commemorating a woman who, alongside Justice Sandra Day O’Connor, has become an inspiration to girls across the World. All sides should look to her decades-long close personal friendship with conservative Scalia as a much-needed example for today’s divided America. The US’ first thought should not be the political ramifications for contentious issues such as abortion and government mandated health insurance. It’s a sad indictment of the politicisation of the judiciary that, against the intentions of the Founding Father’s, some just can’t seem to help politicising almost every aspect of modern life in the US.

Xavier has written more on this subject for an article in The Spectator Australia, accessible here.

What makes America unique?

Defining Elements of American national identity: Exceptionalism, Volunteerism and the American Dream

In an ordinary year, the United States expects roughly 76 million people to visit their country. People from all over the globe come to enjoy the beauty of American landscapes from the breathtaking Grand Canyon to the Utah Mountain ranges. They come to re-live American history by visiting the many historical landmarks and museums such as the nation’s capitol in Washington D.C, Gettysburg cemetery and Mount Vernon.

If those things don’t do it for you, there is a multitude of entertainment on broadway, world-class theme parks and sporting events, the best shopping in the world and a choice of global cuisines – available with a supersize option!

The United States of America certainly is the land of the plenty, and tourists commonly marvel at the confident, patriotic and entrepreneurial nature of the American people. We can point to these common stereotypes, but what is it that actually makes the American nation and its people so different and remarkable from the rest of us?

Having lived and worked in the United States, I boil it down to three defining characteristics. American Exceptionalism, Volunteerism and the Dream. It is these three components that have defined America since its founding and set the U.S apart from the rest of the globe.

In the era following World War II, America has made strides to become the world’s economic, military and cultural hegemon. US exceptionalism is predicated on American’s strong tradition of successful immigration. Since its founding, America has been the ‘nation of nations’ and a refuge for the poor, oppressed and persecuted; sentiments which are inscribed inside the base of the Statue of Liberty. In 1858, Lincoln stated that when immigrants internalised the creed that “all men are created equal,” they “have a right to claim it as though they were blood and flesh of the men who wrote the Declaration of Independence.” Today, immigration continues to be largely supported by both major political parties. In contrast to much of Europe, America has no major political party calling for ethno-cultural policies that would see a ban on immigration. These combined factors afford Americans a world-leading standard of living. Such standards outrank all other countries of major size and geopolitical importance. US history of post-WWII dominance and leadership on the international stage has reinforced and magnified traditional conceptions of American exceptionalism: a core aspect of American national identity today.

A long-standing tradition of volunteerism is another hallmark of American national identity based on the founding values of personal responsibility, moralism and equality of opportunity. It was Benjamin Franklin who formed the first volunteer fire department in 1736, and many American militias during the Revolutionary War were comprised of volunteers. Some of the most well-known American charitable organizations, such as the YMCA and the American Red Cross, date back to the 19th century. Writing about his travels through the US in the 1830s, the French political scientist Alexis de Tocqueville frequently commented on Americans’ tendency to form voluntary civil associations. He was impressed by their desire to come together with their friends and neighbours to accomplish community goals. Today, this same tradition of civic duty and community development is exemplified by the 40% of Americans who actively volunteer their time. This figure sets the United States apart as one the most philanthropic nations in the world. The strong culture and history of volunteerism in the United States lives on today and continues to enable a highly diverse population to unite around shared goals and common purpose.

A further core element of American national identity with particular relevance today is the concept of the American Dream. While the US is a country consisting of a ‘melange of beliefs, cultures and traditions,’ its common thread is that America is the land of opportunity.  The Pilgrims realised this dream, imagining a new destiny for themselves as did the founding fathers. In the 1830’s de Tocqueville observed the ‘charm of anticipated success’ in American society and his research led him to discover that this same optimistic outlook existed among the European colonists some 200 years’ prior.The American Dream is an elastic element which continues to be a defining element of American identity in the 21st century. Athletes invoke it during championship games, immigrants leave their homes in search of it and aspiring politicians appeal to it as a basis for their candidacies. Imbued with a sense of community, the Dream speaks to people of all races, ethnicities. From its earliest settlers to its most recent arrivals, the shared hope and aspiration at the heart of the American Dream is another key unifying concept of American identity. American exceptionalism, the American Dream and volunteerism each remain central in American culture today and establish a shared American identity that is consistent with the nation’s founding ideals of freedom, personal responsibility, equality of opportunity, stewardship and hope. 

The United States of America is a wonderful country, though it is not perfect, it has never claimed to be. Today it is promising to see that the values of US Exceptionalism, giving back to one’s community through volunteering and the American Dream of a better life have endured from the nation’s founding and enable today’s American citizens to live prosperous and free lives.