On (Fri) Sept 18th of this year, Supreme Court Justice Ruth Bader Ginsberg passed away at 87. She was a political and cultural icon well before her time on the highest court in the land. You'd have to be living in a literal cave to have missed this news.
The President announced his replacement nominee on (Sat) Sept 26, and as widely predicted it was Amy Coney Barrett. Barrett is wholly qualified, from being a respected law school professor at Notre Dame to serving on the Federal 7th Circuit Court of Appeals. She has been proven to be an originalist and textualist, ideas that guide her process in making rulings instead of personal opinions. She'd be the first mother of school age children to be a member of SCOTUS, and the only current Justice with a law degree outside the Ivy League.
This is already a massive confirmation fight, as the American political left is not happy about Trump replacing the 'Notorious RBG' and how the lifetime appointment would impact the balance of the court. Admittedly, nobody should be expected to like losing a political battle.
What I'd like to expect, and apparently this is too much to ask these days, is a cessation of constant attempts to delegitimize our system of government and its established practices. Trump and the Democrats are both doing this regarding the November election, making me very nervous about a close outcome while we wait days or weeks on a trickle of mail ballots. Hopefully we avoid total chaos in the interim. Today, however, I want to talk about the ongoing challenges to a potential Justice Barrett. In doing so, let's look at the process determining if Republicans CAN confirm her, and then briefly discuss if they SHOULD.
CAN they?
From the Constitution, Article II, Section II:
'He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.'
Taking the pertinent sections:
'He (the President) shall nominate, and by and with the advice and consent of the Senate, judges of the Supreme Court.'
In other words, the President can, while in power, nominate someone to fill a vacancy in the Supreme Court. The Senate can confirm the nominee if they so choose. It's always important to remember that the Senate cannot be compelled to act by the President or anyone else outside its chamber, but needs to act for a new Justice to be seated.
Donald Trump, a Republican, is currently President of the United States. He was legitimately elected by the electoral college, a sometimes unpopular system but one we've used since 1789. The Senate currently has 53 Republican members out of 100. They were also elected legitimately in one of the last three election cycles (2014, 2016 or 2018). The terms for these offices expire next January, not on election day. Two exceptions (McSally in AZ and Loeffler in GA) were appointed by state governors, another legitimate exercise, and await special elections (on election day).
The Senate currently only requires a simple majority to confirm a Federal judge. This rule was changed in 2013 by Democrats and then Majority Leader Harry Reid from a 60 vote threshold (in actuality, using the 'nuclear option' means bypassing the vote for cloture that needs 60). At the time Reid tried to draw a somewhat nonsensical distinction between the Supreme Court and all other Federal nominees. Later, during Trump's presidency, both Gorsuch and Kavanaugh were confirmed with fewer than 60 votes. If you want to argue about who really upset Senate norms here that's fine, but the answer seems abundantly clear.
So with the information above, if the Senate holds their vote this year, following the steps involved (paperwork, interviews, committee), and at least 50 Senators (which could only be Republicans) vote yes, there will be a Supreme Court Justice Barrett. That is an absolute fact and it's not a circumstance Democrats can stop. And it would all be, again, legitimate.
However, Senate Democrats appear to be united in calling it the opposite:
This tactic appears to call into question the process as established in the Constitution and will result in a great many people thinking the Republicans were nefarious in the nomination and confirmation of a Supreme Court Justice. That they cheated and stole the seat, something unquestionably false. Nothing good will come from that. Politics is especially heated at the moment and the stakes feel increasingly high. But delegitimizing our process shouldn't be acceptable behavior from our elected officials.
Here's where we reach the second part. SHOULD they?
More context is likely warranted. To Democrats this battle goes at least back to 2016 and the nomination of Merrick Garland. Back then the roles were somewhat reversed as President Obama nominated a replacement for preeminent conservative jurist Antonin Scalia. The constant between then and now was Republican control of the Senate, resulting in divided government in 2016. Republicans, under the leadership of Mitch McConnell, ignored Garland's nomination and never began the confirmation process. This left a spot on the Supreme Court vacant for nearly a year, something remarkable regardless what else you think of these events. In the end, it was rather amazing that Republicans bet it all on Donald Trump to win the presidency, obviously a yugely risky (and political) endeavor.
Of course, fights over the judiciary go much farther back. Reid and the Democrats changed the rule and utilized the nuclear option out of frustration with Republicans obstructing Obama's nominations. This happened following Democratic obstruction during the Bush 43 years. While this is the farthest back my memory goes, I still occasionally hear about the treatment of Justice Clarence Thomas in 1991 and the rejection of Robert Bork in 1987. The two parties have fought over the courts forever because of its vast importance to American politics, with huge decisions defining major issues like healthcare, marriage and abortion.
I feel the pressing question needs to be reversed. Is there reason for Republicans to decline their prerogative in confirming Barrett? We've determined they have the power to do so and, while we approach the election, there is enough time before the Senate term ends.
Hypocrisy around the 'McConnell rule' appears to be a central reason being discussed. The idea developed originally from Joe Biden of all people, though his 'rule' was never adopted. McConnell in 2016 said that in the case of divided government (the important disclaimer) during a Presidential election year, a Supreme Court vacancy should be left open and filled by the President elected that November. The major difference in 2020 is no divided government between the White House and the Senate, with both controlled by Republicans. I'm guessing many Senators will end up contradicting statements made back in 2016, but McConnell has always been consistent. To me though, this is a lot of arguing about nothing. The point stands that neither the President nor anyone else can force the Senate to act. If they want to do nothing, they can do nothing.
Here's the culmination and we can't be mistaken about it. This is not about legitimacy nor is it a Constitutional crisis. This is just a political battle, even if the stakes are exceedingly high. We'll hear about everything being rushed. We'll hear about how unconscionable it is to confirm someone during the lame duck if that happens. Democrats would love to flip any potential wavering Republican votes like Collins, Murkowski or Romney. If confirmation can't be stopped, and I suspect it can't, then Democrats want to use the emotion in this fight for electoral success. It's that simple.
The effects aren't exactly clear, with the Court supremely important to both parties. Republicans could see a political cost to a confirmation, or perhaps a windfall. It may not matter with everything always being about Trump and Trump alone. I do know Republican Senators that don't vote to confirm would face wrath from their base. It's also not at all certain that leaving the seat unfilled would calm politics down either. Before Ginsberg's passing, Democrats were already talking about 'packing' the court, which would be a larger upheaval of norms than anything else.
So, no, I don't believe Republicans should or will decline their prerogative. They hold all the cards and will regret not taking advantage of their situation, which very well may be fleeting.
Still, that's not my main point. There's a lot to this fight, which has been going decades at least, and it's important to everyone with skin in the game. What we need to avoid during all this is more damage to our system over entirely political battles. It does the public such a disservice to be repeatedly misled or outright lied to. Our collective civics education always needs a great ideal of improvement and calling lawful processes illegitimate doesn't help in the least. We need to stop that.
As an aside, it'd sure be nice to reach a point where every Presidential election and Supreme Court vacancy isn't akin to the end of the world. Alas.
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Note: I wrote this last week before President Trump and several members of the Senate Judiciary committee tested positive for Covid-19. I don't know what's going to happen next. It's impossible to keep up in 2020.
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