# Ruth Bader Ginsburg's replacement nomination fight **URL:** \ **Category:** Great Debates\ **Created:** [March 25, 2017, 7:15pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020 "2017-03-25T19:15:08Z")\ **Posts on this page:** 20\ **Page:** 9
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 29, 2017, 9:01pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/161 "2017-03-29T21:01:56Z")
> [@Falchion](#): > > Wasn’t that the key distinction between the Due Process argument and the Equal Protection argument? If you have a fundamental due process right to state sanctioned marriage, then the state _can’t_ refuse to issue marriage licenses. If it’s an equal protection issue, then once the state gets into the marriage licensing business, it needs to treat people “equally.” > > I _think_ Obergefell is an equal protection case. But I have trouble telling. On the one hand: “The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” That’s equal protection. On the other hand, “the Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.” That’s due process. And frankly, the reluctance to clearly identify the rationale is one of the hallmarks of, “We know this is what we want to have happen, but we don’t want to paint ourselves into any corners.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 29, 2017, 9:05pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/162 "2017-03-29T21:05:23Z")
> [@Left\_Hand\_of\_Dorkness](#): > > So, not judicial norms, just societal norms, is that what you’re saying? It’s unclear exactly what norm you’re talking about here. > > If you’re saying that any time a court makes a decision that goes against any historical social norm it’s a violation of norms, that seems both true and trivial. If you’re making some other point, it’d help if you’d clarify exactly what norm you think is violated by this decision, and how that’s a nontrivial point. Why is trivial? I’m talking about the norms of equal protection jurisprudence, for what it’s worth, but certainly social norms may be invoked. But yes – why is the GOP’s violation of Senate norms such an outrage and the court’s violation of equal protection norms so welcome? Is it not simply because the real issue isn’t “violation of norms” at all, but whether the violation advances or frustrates your preferred outcome? ---
**Author:** ![Skammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skammer/32/143_2.png) [@Skammer](https://boards.straightdope.com/u/Skammer)\ **Post date:** [March 29, 2017, 9:16pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/163 "2017-03-29T21:16:08Z")
> [@Bricker](#): > > I don’t know of any legal requirement for a hearing. Politically, **I suspect that the cost of not even holding a hearing would be high.** I think they’ve already proven that not to be the case. ---
**Author:** ![JR\_Brown](https://avatars.discourse-cdn.com/v4/letter/j/d6d6ee/32.png) [@JR\_Brown](https://boards.straightdope.com/u/JR_Brown)\ **Post date:** [March 29, 2017, 9:16pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/164 "2017-03-29T21:16:10Z")
> [@Bricker](#): > > Can two nine year olds marry? > > No. Presumably you’d say there’s a good reason. > > But throughout most of our nation’s history, we believed there was a good reason that two adult men could not marry each other. > > The rejection of that belief was the violation of norms. Throughout most of our nation’s history, we believed there was a good reason that women should not vote. Throughout most of our nation’s history, we believed there was a good reason that black people should be treated as a separate and inferior category of person. In fact, for a good chunk of of our nation’s history, we believed that married women did not have a separate legal existence from their husbands, and that it was acceptable to own black people as chattel. Throughout our history, we have hit points where the “norms” of prior generations were recognized as bigoted bullshit, and laws based on that bigoted bullshit got changed. A couple of those “norms” were baked into the Constitution, and required an amendment to fix. Many were fixed through “judicial activism”, as I’m sure you would put it. Personally, I am glad that our Supreme Court generally agrees that prohibiting a class of people from enjoying the rights granted to the rest of the population based solely on longstanding (religiously motivated) prejudice is unconstitutional. I am sure you are fully aware why your “but why can’t 9 year olds marry” shtick is garbage, but just FYI, it also makes you look ridiculous. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 29, 2017, 9:31pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/165 "2017-03-29T21:31:55Z")
> [@JR\_Brown](#): > > Throughout most of our nation’s history, we believed there was a good reason that women should not vote. > > Throughout most of our nation’s history, we believed there was a good reason that black people should be treated as a separate and inferior category of person. > > In fact, for a good chunk of of our nation’s history, we believed that married women did not have a separate legal existence from their husbands, and that it was acceptable to own black people as chattel. > > Throughout our history, we have hit points where the “norms” of prior generations were recognized as bigoted bullshit, and laws based on that bigoted bullshit got changed. A couple of those “norms” were baked into the Constitution, and required an amendment to fix. Many were fixed through “judicial activism”, as I’m sure you would put it. Personally, I am glad that our Supreme Court generally agrees that prohibiting a class of people from enjoying the rights granted to the rest of the population based solely on longstanding (religiously motivated) prejudice is unconstitutional. > > I am sure you are fully aware why your “but why can’t 9 year olds marry” shtick is garbage, but just FYI, it also makes you look ridiculous. If I may take **Bricker** ’a part, here: those other instances were all solved through legislation, not judicial decisions. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 29, 2017, 9:50pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/166 "2017-03-29T21:50:32Z")
> [@Bricker](#): > > Wasn’t it Muhammad Ali who said something like, “If you can do it, it ain’t braggin?” > > Justice Ginsburg has a flawed view, in my opinion, of the best role for federal judges to play in a representative democracy like ours . . . but she is a great legal mind, and it’s not egotistical for her to believe that she can do the job better than almost anyone else that might be nominated. I don’t share her philosophy, but I am awed by her analytical prowess and our country will be poorer when she leaves the bench. I think its egotistical for ANY judge to think they are better than pretty much any other judge out there. RBG is rare talent but not a unique one. RBG did great things but it was time for her to step aside for the greatness of others. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 29, 2017, 10:03pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/167 "2017-03-29T22:03:44Z")
> [@k9bfriender](#): > > I believe it is one of many metrics that determine what a country wants. Popular vote for president being another one. The fact that strategically, it is better to have certain voters in certain geographic locations does not change how the people voted. People vote, people matter. Geographic locations are just where people are. > > In a democracy, the way to find out what people want is ultimately at the ballot box. The fact that there were far more votes for democratic ideals than republican ideals is something that should be considered. I am not saying that the majority of votes going to democrats in this race gives them a mandate, I am just saying that it does mean that the republicans can’t really claim a mandate either. They can claim the white house, the senate, the house, total control of 25 state governments. Democrats OTOH have control of 5 state governments. In a country where 40% of the population doesn’t vote, a 2 or 3% popular vote advantage is pretty meaningless. The fact that only 2/3rds of the states have senatorial elections makes senate vote counts even more meaningless. I don’t think Republicans have a mandate to go hog wild but this election was clearly a rejection of Democrats generally and one Democrat in particular. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 29, 2017, 10:07pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/168 "2017-03-29T22:07:19Z")
> [@Airbeck](#): > > Then you were standing in a very weird place. It was a statement that attacks on women’s rights will be resisted no matter what. You are referring to one emotion that was common among the attendees, but to claim that was the entire motivation is pretty myopic. If a million people had different reasons to be there but the one thing they all have in common is that they were mostly pissed that hillary lost then it was not a collection of people with a million different causes, it is a collection of people who are pissed that Hillary lost. What other common cause was there? What attack on women’s rights were they there to protest? Was it an abortion rights march? Is that why they prohibited the pro-life feminist group from participating? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 29, 2017, 10:13pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/169 "2017-03-29T22:13:58Z")
> [@Shodan](#): > > We had Congressional elections in 2016. I am not aware of any significant number of GOP Senators attempting to hang onto their seats by claiming they would have voted to confirm Garland. Feel free to cite if I am mistaken. > Keeping in mind that there are a larger number of Democratic seats in the Senate that will be up for re-election than Republican ones, thus a larger number of cases where “I would have voted for Garland” is pretty much a foregone conclusion and therefore probably not a significant factor. > > Plus, it appears to me that most of the blame for not having hearings or a vote on Garland is McConnell’s, not Trump. If you are saying that in 2018,Trump is so universally despised that every single thing he did, including nominating so scholarly and thoughtful a person as Gorsuch, will have to be repudiated, that remains to be seen. Gorsuch is well qualified to be on SCOTUS but the poor treatment of Garland justifies poor treatment of every Republican nominee until Gorsuch gets a vote. Its not fair to Gorsuch but he’ll live. > [@](#): > > Perhaps I’m projecting, but the nomination of Gorsuch is the best thing Trump has done so far. And, although I didn’t vote for Trump, the only reason I would have, and the only reason the Trump voter with whom I am most familiar did, is that he would nominate conservatives to the Supreme Court. He didn’t do anything that any other Republican POTUS wouldn’t have done. Literally everyone in the Republican primary would have nominated a similar justice. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 29, 2017, 10:15pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/170 "2017-03-29T22:15:46Z")
> [@Miller](#): > > If I may take **Bricker** ’a part, here: those other instances were all solved through legislation, not judicial decisions. Pretty sure one if them was solved with a war. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 29, 2017, 10:18pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/171 "2017-03-29T22:18:39Z")
> [@Budget\_Player\_Cadet](#): > > [Yep.](http://www.theatlantic.com/politics/archive/2016/11/whats-the-opposite-of-court-packing/506081/) And why wouldn’t they? Clearly, upholding democratic norms (like “the president gets to nominate supreme court justices and that gets to actually _mean_ something”) is considerably less important than winning on a particular policy agenda. Oh you’re talking about Ted Cruz. Meh. I don’t equate Ted Cruz’s desires with what the Republican party intends to do. Now if it was Mitch McConnell saying this… ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [March 29, 2017, 10:25pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/172 "2017-03-29T22:25:13Z")
> [@CarnalK](#): > > Pretty sure one if them was solved with a war. Followed by the passage of a law. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 29, 2017, 10:37pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/173 "2017-03-29T22:37:46Z")
> [@Damuri\_Ajashi](#): > > Followed by the passage of a law. Well, I’ll leave it to Bricker to say whether he prefers civil war+legislation over judicial activism. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 29, 2017, 11:44pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/174 "2017-03-29T23:44:41Z")
> [@JR\_Brown](#): > > Throughout most of our nation’s history, we believed there was a good reason that women should not vote. Yup. And then we came to realize that was a poor policy, so we used our LEGISLATURE to enact the 19th Amendment. > [@](#): > > Throughout most of our nation’s history, we believed there was a good reason that black people should be treated as a separate and inferior category of person. Yup. And then we came to realize that was a poor policy, so we used our LEGISLATURE to enact the 14th Amendment. > [@](#): > > In fact, for a good chunk of of our nation’s history, we believed that married women did not have a separate legal existence from their husbands, and that it was acceptable to own black people as chattel. Yup. And then we came to realize that was a poor policy, so we used our LEGISLATURE to enact the 13th Amendment and repeal coverture laws. > [@](#): > > Throughout our history, we have hit points where the “norms” of prior generations were recognized as bigoted bullshit, and laws based on that bigoted bullshit got changed. A couple of those “norms” were baked into the Constitution, and required an amendment to fix. Yes. I have no objection in the slightest to such changes – that’s why we claim to be a nation of self-governance. > [@](#): > > Many were fixed through “judicial activism”, as I’m sure you would put it. Personally, I am glad that our Supreme Court generally agrees that prohibiting a class of people from enjoying the rights granted to the rest of the population based solely on longstanding (religiously motivated) prejudice is unconstitutional. I’m sure you are. But isn’t that because you like the result? If the Supreme Court agreed with me that abortion kills a human being, and ruled that abortion is the deprivation of life without due process of law and forbid it, would you be equally glad? You’re happy to get your way, is what you’re saying. > [@](#): > > I am sure you are fully aware why your “but why can’t 9 year olds marry” shtick is garbage, but just FYI, it also makes you look ridiculous. Obviously I don’t agree, because it’s a question that exposes the lack of any real textual basis for saying that the decisions you like are Constitutional and the ones you don’t like aren’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 29, 2017, 11:45pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/175 "2017-03-29T23:45:43Z")
> [@CarnalK](#): > > Well, I’ll leave it to Bricker to say whether he prefers civil war+legislation over judicial activism. I prefer legislation. Option C. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 29, 2017, 11:48pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/176 "2017-03-29T23:48:00Z")
> [@Damuri\_Ajashi](#): > > I think its egotistical for ANY judge to think they are better than pretty much any other judge out there. RBG is rare talent but not a unique one. RBG did great things but it was time for her to step aside for the greatness of others. How many judicial careers have you studied and opinions have you read, in depth? Are you serious trying to advance the proposition that RBG’s intellect is indistinguishable from “pretty much any other judge out there?” Really? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 29, 2017, 11:49pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/177 "2017-03-29T23:49:55Z")
> [@Skammer](#): > > I think they’ve already proven that not to be the case. No. Certainly not in modern times, I’m unaware of any Supreme Court justice confirmed without a hearing. Who are you thinking of? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 29, 2017, 11:53pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/178 "2017-03-29T23:53:25Z")
> [@Bricker](#): > > Is it not simply because the real issue isn’t “violation of norms” at all, but whether the violation advances or frustrates your preferred outcome? A little from A, a little from B. Norms are good to establish what should be proper behavior under normal circumstances (norm, normal–get it?) They should not be straitjackets that prevent unusual behavior under unusual circumstances, such as having a judge in the mid-eighties who supports the legality of poll taxes. Nor should they be fripperies discarded at whim or for mere naked partisan advantage. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 29, 2017, 11:53pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/179 "2017-03-29T23:53:56Z")
> [@Bricker](#): > > And frankly, the reluctance to clearly identify the rationale is one of the hallmarks of, “We know this is what we want to have happen, but we don’t want to paint ourselves into any corners.” The opinion was shit, but I see it as a equal protection argument. And two 9 year olds can’t marry because marriage is a contract and they have not yet reached the age of majority. Those who have not reached the age of majority may not enter into contracts, generally. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 29, 2017, 11:59pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/180 "2017-03-29T23:59:00Z")
> [@Bricker](#): > > No. Certainly not in modern times, I’m unaware of any Supreme Court justice confirmed without a hearing. Who are you thinking of? He highlighted and was speaking to the second part: political cost of not holding a hearing. [Previous page](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020.md?page=8) [Next page](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020.md?page=10)