As scandalous as it may seem to opponents of Donald Trump, he has the right to choose who will succeed Justice Ginsburg on the Supreme Court.
Trump claims to be fighting the government of judges and he makes it an election issue. In the eyes of his constituents, the appointment of another Conservative judge to the Supreme Court is a democratic duty.
Indeed, American judges tend to rule on political debates. They sometimes overturn laws that have been voted by a majority of elected officials. Trump says he has been given the mandate to appoint judges who will not take the place of elected officials.
Trump's position is defensible. Except there is a gulf between what Trump says and what he does.
Overthrow the Democratic judges
Since taking office, Trump has succeeded in appointing nearly 260 of the 793 active judges in federal courts. That's almost 33% of them. A record, when we consider that in eight years, Barack Obama appointed 39% of the judges. The judges appointed by Trump are young. They are on average 50 years old, 10 years younger than those named by Obama.
The White House website shamelessly explains that Trump has succeeded in overthrowing the majorities of Democratic judges in several courts, especially in appellate courts and the Supreme Court. For the spirit of impartiality supposed to reside in the judges, we will come back.
However, the problem of the political role of judges remains unresolved. When does a court decision become a political decision that overturns the will of the people?
This question cannot be answered in advance.
Power relations and constitution
From a political point of view, a constitution is first and foremost the legal fixing of a balance of power between the groups of a society. Judges should never take the place of lawmakers. But when a constitution is too old, that is what can happen.
When the balance of power changes fundamentally, the Constitution must also change. The last significant constitutional amendment dates from 1971: due to the Vietnam War, the voting age was fixed everywhere at 18. Since then, the Constitution has changed little. However, American society has changed dramatically.
Most Americans want constitutional changes. But in a society as polarized as that of the United States, no consensus exists on these changes.
The political forces present in American society are still changing. No new balance of power can therefore be fixed in a new constitution.
Until a new stable balance of power reshapes the Constitution, the government of judges will strengthen, which will continue to cause serious political tensions. For the moment, fundamentalist religious groups are taking advantage of this to try to impose their stupidities on the rest of the population.