Probable Ruth Bader Ginsburg replacement is Amy Coney Barrett...

[deepwatersolo]

...writes the NYT. She appears to be strongly anti-abortion due to her religious background. She worked for Scalia and is said to share his views - so staunchely, extremely conservative.

www.thenation.com/article/politics/amy-coney-barrett-extremist/

Ironically she made a huge song and dance when Obama moved to replace Scalia at the end of his second term - because that would significally alter the make up of the Supreme Court, ideologically flip it...

But flipping it from RBG to her is apparently ok. Oh the hypocrisy.

Bloody hell, I hope the Democrat minority in the Senate are completely on top of the procedural rules, because they'll need every trick in the book to delay this till after the election (which, incidentally, I fear may go Trump's way - he's making inroads in Florida).

I don't share in the hero worshipping of Ruth Bader Ginsburg. She was appointed by Clinton. She was 87 when she died. If she really was the last bastion of liberal values in the court she could have retired in the third year of Obama's second term and allowed a safe, much younger appointment then.

Yes, why no criticism of RBG? She should have gone years ago when they could have arranged a successor. The situation is entirely of her making.

Bloody hell, I hope the Democrat minority in the Senate are completely on top of the procedural rules, because they'll need every trick in the book to delay this till after the election.

I think they would have to delay it till after inauguration, no? I have seen some document circulate something along the lines of '7 (I may be mistaken about the number) things Dmocrats could do to impede the process.' Whether it would be enough to prevent the nomination til inauguration, or even until election day, I do not know.

And as you say, it is not at all certain Biden will win. Starting with the electoral college, which may give Trump the election even though losing the popular vote (again), then Biden having enough baggage to make likely Dem voters less enthused and Trump's following which is totally resistant to evidence (''But he only helps the rich!'' ''No, he is vor the little guy.....'')... I also fear a Trump re-election may well be in the cards.

Yes, why no criticism of RBG?

I said on another thread that her not stepping down at the right time was very problematic - they were just too sure Hillary would win, and I think they thought it would be a great signal if a woman would nominate the replacement of RBG. (At least that is what I have read). It was hubris.

But also, I can understand that RBG didn't want to give up her calling when she felt strong enough to do it. What I find inexcusable was that the Dems did not replace Scalia. Again, they thought they had ample time with Hillary as president. Again, hubris. But in that case, there would not have been an issue with trying to presuade a good judge who felt strongly about her calling to step down.

Not replacing Scalia was a cardinal failure.

Sorry, have I misunderstood something?

Obama tried to replace Scalia and nominated Merrick Garland. The Republican-controlled Senate blocked it with procedural delays until Obama's presidency expired.

This wasn't some kind of oversight. Mitch McConnell announced he wasn't going to allow a new Supreme to be appointed under Obama, even before Garland had been nominated.

So I don't get where the "hubris" comment comes from. It wasn't that the Dems didn't try.

There's also no tradition of not appointing a new Supreme near the end of a presidential term: McConnell invented this excuse and as he's now showing, is shameless in ditching it when he wants to.

I mean, I know there's a persistent trope that "Whatever the rightwing does, the leftwing is responsible."

It does seem a very successful tactic.

@Apollo440

Yes, why no criticism of RBG? She should have gone years ago when they could have arranged a successor. The situation is entirely of her making.

We have no way of knowing if she intended to go in the last months of the Obama presidency, given that Merrick Garland's blocking was unprecedented. And she had no way of knowing that the court would morph as it has, from strict neutrality to wholly political.

It's worth noting that she was confirmed, herself, almost unanimously by Democrat and Republican alike, and that's been the norm throughout the history of SCOTUS in the last century, at least. She was nominated by Clinton, but suggested by a Republican. SCOTUS was always seen as above politics - that's why Justice Roberts has sided with the liberal justices, and smacked Trump down so hard when he talked of, "my Supreme Court." There has been an intentional and deliberate push from some in the Republican party to achieve ideological capture but the lengths to which they were willing to go were simply unimaginable, even five years ago.

It's unreasonable to blame RBG for lack of second sight, in anticipating this naked politicisation of a court that always prided itself on being politically neutral. For her to intentionally resign when a Democrat could appoint her successor would have been against her own principles, in the past - nobody could have predicted a Trump victory as Republican nominee; remember how everyone laughed, when he announced? And once Merrick Garland's nomination was blocked, and it became clear that Trump will appoint only those he feels are his henchmen and women, her hands were tied.

Sorry, have I misunderstood something? Obama tried to replace Scalia and nominated Merrick Garland.

True. Obama basically compromised on the candidate even before the fight (Garland, really?) and got rejected anyway. But there was no fight.

To cite an NPR article: 'It also has been argued that the Democrats caved to McConnell's pressure tactics in the Garland case. They should have found a way to force a vote or "shut down the Senate" to light a spark.'

www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now

Pelosi has this time again ruled out the 'shut down' route, I believe.

I mean, I know there's a persistent trope that "Whatever the rightwing does, the leftwing is responsible." It does seem a very successful tactic.

Obviously, one expects more from one's own side than from the side that explicitly tells you they are not on your side. Also, when Democrats, say, vote for Trump's bloated military budget, is then only Trump responsible for that budget? I don't think so.

There's two things in play re. timing.

If (and it's a big if) the Democrats win, you're right, they have to filibuster right up to the inauguration.

But also Trump is desperate to get an appointee in place before the election, because (in the event of hanging chads, accusations of electoral irregularities etc. in a very close contest) it's the supreme court which rules on this.

'It also has been argued that the Democrats caved to McConnell's pressure tactics in the Garland case. They should have found a way to force a vote or "shut down the Senate" to light a spark.'

Rather proving my point.

TeddyDahlia posted this excellent analysis about the Supreme court and why the significant split is not Republican/Democrat, but Institutionalist/Radical:

^In terms of whether it would be the end of Roe v Wade if Ginsburg were to be replaced with a Republican - probably not. For one thing, the Supreme Court is already majority Republican, so it isn’t Ginsburg who held the line for democrats. It would obviously be very concerning from a left wing point of view to have her replaced by a Republican - particularly one chosen by Trump. But it’s unlikely to be the tipping point for Roe v Wade.
But even more importantly, the Supreme Court doesn’t actually strictly split down Republican / Democrat lines. The more relevant split is Institutionalist / Radical. Those justices who are institutionalists will almost always vote to uphold decisions which have gone before, and will rely heavily on precedent. The current head of the Supreme Court, John G Roberts is a Republican and an institutionalist, which means he would be most likely to uphold Roe v Wade on the basis of it being settled precedent. It is therefore not at all guaranteed, or even likely, that a majority Republican SC would overturn Roe v Wade^

I think a lot of anti-abortionists think of themselves as traditional, and women's rights as radical. There's a reason we refer to "rolling back" women's rights – back to where they were a few decades ago, within living memory for many of us.

So I don't think that argument supports the retention of Roe v Wade.

Anyway, as the title states, the nominee is likely to be Amy Coney Barrett, so loose handwaving is out of the window.

Her beliefs are well publicised.

as traditional, and women's rights as radical

In the context of the Supreme Court, Institutionalist refers to respect for precedent. Roe v Wade was 1974. There is already a majority of Republicans on the Supreme Court, yet voting is not split along party lines. The idea that RBG was the last line of defense against a Republican is not a credible position.

Republican takeover

And of course what we've seen in recent years is that anti-abortionist legislators have been undermining Roe v Wade without overturning it.

Creating increasingly high obstructions to access to abortion without actually banning it outright, has been very successful.

The split is not quite as simple as instutionalist versus radical.

Neil Gorsuch, for example, describes himself as "originalist"
time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
i.e. he interprets the constitution according to what he believes to be the intentions, at the time, of the writers.

So while I would expect him to come down for the most part on the institutionalist side, and respect precedent, I think if it was an issue which was a sufficiently hot button topic for him (and as a practicing Catholic, who ruled in the Hobby Lobby case when presiding in a lower court, on the side of religion), I think if he came up with what he thought was a sufficiently plausible line of reasoning to the effect that the Founding Fathers would have believed abortion to be in violation of the constitution, he would be prepared to overturn Roe vs. Wade, precendent or not.

Ironically, despite the history of allegations against them (not successfully proven in a court of law, I add, just in case someone tries to go deletion-happy on this thread), Thomas and Kavanaugh are less likely to overturn precedent.

www.cnbc.com/2019/06/28/trumps-two-supreme-court-justices-kavanaugh-and-gorsuch-diverge.html

This is also interesting, on how often Kavanaugh (favouring precedent) and Gorsuch (separation of powers and constitutional principle) disagree with one another.

As she now has the nomination, has anyone found out if Amy is brilliant but conservative or just conservative. What I mean is, there are some amazingly clever people who believe things that I do not, but they still demonstrate their IQ and critical thinking and independent thought, on matters of work. But as I had never heard of Amy until her nomination, I get the impression that she has not set the world on fire to date with her grasp of the law?

I don't know anything about brilliance, but this is quite an informative piece on her previous judgments (worth reading all of), and suggests answers to some of the questions further up this thread.

Trump is expected to nominate Amy Coney Barrett to the Supreme Court
www.vox.com/21446700/amy-coney-barrett-trump-supreme-court

In a 2013 article, she suggested that justices should not feel bound by precedents that they strongly disagree with.

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in that piece. Thus, if Barrett concludes that a decision like NFIB is “clearly” in conflict with the Constitution, she is likely to ignore it.

Interesting, Perking - thanks for the link.

So, like Gorsuch, an "originalist", but (I think unlike Gorsuch) one whose reading of the constitution is likely to tend towards interpretations which square with her ideological and religious beliefs in other areas.