A prodigious legal mind and feminist icon, Ruth Bader Ginsburg’s celebrity was well-earned. Liberal or not, her impressive life story and outsized presence on the Supreme Court are undeniably inspirational, and her death on September 18 marks an immense loss to the nation. It also represents an opportunity for Republicans to confirm a new justice before the upcoming elections, which would solidify a 6-3 conservative majority on the court. President Trump’s nominee, Amy Coney Barrett, is a principled conservative with resolute pro-life convictions, and would be an excellent addition to the court. Unfortunately, due to short-sighted and opportunistic actions by Senate Republicans in the recent past, RBG’s successor cannot be the shoo-in she should be. To prevent further partisan conflagration and potentially irreversible damage to the integrity and legitimacy of the Supreme Court, the confirmation of a new justice should wait until after the elections.
In March 2016, following the death of Justice Antonin Scalia, Senate Republicans famously denied a vote to President Obama’s nominee, Merrick Garland, on the grounds that the next elected president should get to choose instead. “It’s been 80 years — 80 — since a vacancy created in a presidential election year was filled,” Majority Leader Mitch McConnell said at the time. What does he say now? “We are going to vote on President Trump’s nominee… this year.” The difference, he argues, is that in 2016 there was a Republican Senate and a lame-duck Democratic president, whereas now Republicans control both the Senate and the presidency. But as The Economist observes, this distinction will convince “only the most partisan Republicans.” Greater in number are those who are outraged by what is perceived to be blatant hypocrisy on the part of the GOP. A recent Reuters poll found that 62 percent of Americans agreed that the Supreme Court vacancy should be filled by whoever wins the presidency on November 3. This included eight in ten Democrats and a telling 50 percent of Republicans.
No one is arguing that it isn’t a fully legitimate exercise of constitutional power for President Trump to nominate a new justice, and for the Senate to vote and confirm her. However, this is a situation where optics matter, and clearly the perception held by the majority of the country is that Senate Republicans created a precedent, and are choosing to break it now that it’s politically expedient. Can you blame them? In 2016, Senator Lindsey Graham vowed, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” Now people are saying just that, but Graham himself has made a 360. “I will support President Trump in any effort to move forward” in filling Ginsburg’s seat, he announced this week. Pressed by Democrats on the judiciary panel about his reversal, he was shameless — “I am certain if the shoe were on the other foot,” Graham wrote, “you would do the same.”
It is thus hard to argue, as statements by Graham, McConnell, and others have made clear, that the decisions not to vote on Obama’s nominee, and now, the decision to move forward on Trump’s, are reflective of any legitimate precedent rather than thinly veiled politicking. This is not unconstitutional, but it is unprincipled, deeply unpopular, and may actually pose a real threat to the legitimacy and nature of the court in the near future. This threat lies with the Democrats, who are increasingly warming to the idea of court-packing. “Mitch McConnell set the precedent,” Senator Ed Markey wrote on Twitter on September 18. “If he violates it, we must abolish the filibuster and expand the Supreme Court.” Democratic senators Cory Booker, Elizabeth Warren, and Kirsten Gillibrand all voiced their willingness to expand the court even before RBG’s death, during their respective presidential bids. Other senators, like Dianne Feinstein, have pushed back against this idea, and it is unclear how much support it actually holds among Democrats.
Still, the terrifying reality that court-packing is now part of the mainstream public discourse is evidenced by the fact that so many top Democrats have refused to expressly disavow the idea. Minority Leader Chuck Schumer chose to remain vague, telling fellow Democrats last week that “nothing is off the table” if Republicans fill Ginsburg’s seat. In the past, Joe Biden admirably dismissed the idea. “I would not get into court packing,” he said last year. “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.” Concerningly, he now won’t say where he stands. Asked by a Wisconsin TV station whether he would pack the court as president, Biden evasively replied, “It’s a legitimate question. But let me tell you why I’m not going to answer that question: because it will shift the focus. That’s what [Trump] wants.” It isn’t a good sign that his VP pick, Senator Kamala Harris, was among those who said she was amenable to court-packing during her run in the Democratic primaries. “I’m open to it,” she told The New York Times in 2019. “I’m absolutely open to it.”
To be sure, it would be great to have a solid conversative majority on the Supreme Court. But is it worth the potentially disastrous cost of the court’s remaining credibility? If Republicans move forward to replace RBG before the election, they essentially gamble on whether or not Democrats will win back the Senate and presidency and have a chance to retaliate. With The Economist’s statistical model giving Biden an 86 percent chance of victory and the Democrats a two-thirds likelihood of flipping the Senate, this gamble may very well turn out badly for the GOP. If Republicans do confirm a new justice before the election, calls for court-packing will only grow louder, and if the Democrats do win in November, these words may very well become action. If this happens, there will likely be no going back. Once one party starts court-packing, as Biden wisely noted, it is unlikely the other party will have the restraint to end it. It would be a sour victory indeed for Republicans — but more importantly for the nation — if we gained another conservative justice, only to see the credibility and fundamental nature of the Supreme Court irrevocably damaged.
To be fair, concerned Democrats may want to ask why this situation exists in the first place. Mitch McConnell is not the first to abuse and alter established precedents for partisan ends. Democrat Harry Reid was actually the first, when he, as Senate Majority Leader in 2013, triggered the “nuclear option,” which eliminated the filibuster for most executive branch and judicial appointments. This allowed Senate Democrats to push through then-President Obama’s nominees via simple majority, rather than the traditional three-fifths supermajority. After Republicans won back the Senate in 2014, Reid’s successor, Mitch McConnell, unsurprisingly retaliated by extending the nuclear option to Supreme Court nominees. This recent history should serve to warn that in politics, once historical norms are broken, there is often no going back. Republicans today should learn from Democrats’ past mistakes, and not follow in their footsteps. We may temporarily lose one justice, but future generations will thank us for forestalling the destruction of the integrity and credibility of the Supreme Court.