Courts

The Supreme Court Nominee's Confirmation Process Will Be Cringeworthy

Grab your popcorn and settle in for what will almost certainly be a long, drawn-out, acrimonious series of events.

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I, like many, am saddened by the recent passing of Justice Ruth Bader Ginsburg. The timing of her death could not be worse as it has exacerbated the civil unrest in this country while we live with a virus pandemic that doesn’t care who you vote for in November. Honestly, I don’t know much about Justice Ginsburg other than her general public stature. I am more familiar with her late husband Martin Ginsburg, an eminent tax attorney.

Republicans have planned for this moment, probably for years. All possible scenarios have been addressed, confirmation votes have been assured, and deals have been made for those on the fence or who face tough re-election battles. President Donald Trump said that he will announce his nomination by the end of the week. But the fact that they are moving so quickly to replace the vacant court seat tells me that there is a good chance that the balance in power will shift in 2021.

Trump’s nominee will face a tough crowd and it’s not just the usual criticism from the opposition. Unless he nominates Merrick Garland or a surprise liberal-centrist, the nominee will be attacked, scrutinized, shamed, and doxed. We might even see a few funny internet memes at their expense. Some media outlets and their many commentator-journalists will be relentless.

When a liberal justice is being replaced by a conservative one, there has been surprise and drama. A mysterious figure will suddenly appear, accusing the nominee of something heinous they did in the past. The accuser might have objective, unbiased proof to back up their accusations. Or they will have no evidence but knows that the nominee won’t have any either, thus turning this into a battle of rhetoric and credibility.

The accuser will be raked over the coals by Republicans and their supporters. He or she will be asked, “Why come out now? You knew about the nominees and their front-runner status for a long time. Why didn’t you let us know sooner?” To which the accuser will respond: that they were scared, didn’t think it was a big deal, or they didn’t think the nominee would make it this far. Regardless, it is better to be late than never, and they see it as their patriotic duty to put their country’s needs (as they see it) before their own.

Once this is over, the accuser may have to go into hiding for a while. But chances are they will be fine in the end, have a six-figure GoFundMe nest egg for their trouble, and will be a hero to the liberal crowd.

In the final analysis, two things are certain. First, it won’t matter if there is evidence or not. Trump’s opponents will automatically believe the accuser without question. This is because they are more interested in intimidation. Enough to force the nominee to withdraw and force Republican senators into changing their vote. They are less interested in knowing whether the accuser is telling the truth, exaggerating like a résumé, or even lying. And anyone who questions the accuser will be unfriended, blocked, cancel cultured, and accused of whatever “-ism” is most convenient.

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Second, this tactic — while making popcorn-worthy political theater — is not likely to work. It didn’t work with the Clarence Thomas nomination nor with Brett Kavanaugh. Given the Senate’s makeup and the statements from supposedly on-the-fence Mitt Romney and Chuck Grassley supporting a full vote before the next inauguration, confirmation is near certain. It might be a scorched-earth victory but a victory nonetheless.

So who knows if there will be any surprise appearances during the confirmation process. Most of the leading Democratic politicians have stated that “all options will be open” to fight the confirmation although no one has stated any specifics. Some have suggested another impeachment hearing although it is unclear how that will stall anything. Or a private individual might act on their own. Or they may wait until 2021 when court-packing becomes an option should the Democrats take control.

I understand why Democrats are fighting this so passionately. Replacing a liberal justice or a swing-vote justice with a conservative one will tilt the court further to the right and many 5-4 decisions will either be overturned or strengthened. Abortion rights and other issues Democrats hold dear will be threatened. Obviously, they cannot accept this lying down as it will anger their voter base, particularly a growing faction who have accused the leadership of being “weak asses.”

On the other hand, I expect the nominee will be ready to fight back, especially if the nominee is a woman. She saw what Thomas and Kavanaugh went through, and she should be ready to face the same level of grilling, both from Democratic senators and their supporters. It’s safe to say that she won’t be crying in front of the judiciary committee.

Democratic leaders should be mindful of the aftermath. While the confirmation process will mobilize their voter base, there will also be those lone-wolf psychopaths who are itching for a reason to riot under the guise of protesting if Trump’s nominee is confirmed. If the unrest gets bad enough, it will turn off moderate voters who want order restored.

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So grab your popcorn, folks. Because of the stakes involved, Trump’s nominee to replace Ginsburg will run through a political gauntlet. Not only that, we’re likely to see someone accuse the nominee of something, and we’ll be expected to believe that person without question. But since this is an election year, how each party behaves through the process might determine who gets control of the Senate and the White House in 2021.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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