The Notorious RBG continues to earn her nickname. According to Bob Barnes (who I think has the most complete account of her remarks yesterday at GULC), RBG was asked about the advice and consent process. The answer should have been, “I can’t comment.” Instead, she went ahead and offered an advisory opinion of a now-pending federal lawsuit that is attempting to force a vote on Garland.
“If the Senate is not acting, what can be done about it?” Ginsburg asked rhetorically. “Even if you could conceive of a testing lawsuit, what would the response be? ‘Well, you want us to vote, so we’ll vote no.’ ”
Of course RBG is correct–the lawsuit has no legs–but she should not go out of her way to opine on pending cases that could, in theory, come before the Court. But, of course, she couldn’t stop there.
“I do think cooler heads will prevail, I hope sooner rather than later,” Ginsburg said. “The president is elected for four years not three years, so the power he has in year three continues into year four.”
“Maybe members of the Senate will wake up and appreciate that that’s how it should be.”
This is similar to what she said in July–that the Senate has the obligation to vote on the President’s nominees.
“That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”
RBG needs to reread her Constitution. No one has argued that the President’s term is over. He “shall” nominate, and he did. But the Constitution imposes no corollary duty on the Senate. I’ve now debated this topic more times than I can count, and every debate ends the exact same way–“well the text is on your side, but there is a general principle or precedent being ignored.” Fine. Valid argument, but it is inherently a policy-laden judgment. There is no constitutional argument a Justice could ever rule on.
But RBG’s tone criticizes Republican Senators for not having “cooler heads.” She hopes they will “wake up” and “appreciate” that her vision of constitutional law is not “how it should be.”
Update: Bob Barnes included in his story this line:
“I hope that’s not too political,” she said, to laughter. “Sorry.”
I misread it, and thought “she” referred to RBG, but it referred to a student asking a question. My mistake.
I continue to dread the possibility that there will be some presidential-related matter that comes before the short-handed Court. RBG has done herself no favors.