Fact: Liberal jurist and Supreme Court Justice Ruth Ginsburg died on September 18. That event, not expected prior to 2020 elections, has thrown a wrench into the works. Most immediately, it puts pressure on Senate Republicans to seat a nominee, while preserving their majority.
Fact: President Trump intends to nominate a woman to replace Ginsburg. The nominee will be qualified and judicially conservative, meaning apt to construe words in the Constitution strictly, not filling in blanks, legislating, getting creative, or judicially activist – as Ginsburg was.
Fact: A concern of conservatives – and liberals – is how the appointee will interpret constitutional provisions and decisions, as well as what weight she accords stare decisis or precedent. Of special concern is how she sees the 1973 Roe v. Wade decision, which creatively inferred a constitutional right to abortion.
Fact: The contest will be bitter, as Republican appointees outnumbered Democrats 5-4 before Ginsberg died. The new mix of 6-3 could roll back activism. To Republicans, this is promising – worth risking the Senate. To Democrats, it is a perilous, as they revere activism and Roe.
Fact: The 53-47 Republican-controlled Senate will vote on Trump’s nomination. See, https://www.politico.com/news/2020/09/18/mcconnell-vows-senate-will-hold-vote-on-ginsburgs-replacement-418021. The vote could be before or after elections, late as January 3rd.
Fact: While a pre-election vote allows deliberation, it imperils moderate Republicans, like Susan Collins of Maine, Thom Tillis of North Carolina, and Cory Gardner of Colorado. If forced to vote pre-election, some may balk. Leadership must count carefully, as losing 3 would require Vice President Pence as tiebreaker; losing 4 would scotch the nomination.
Fact: Conversely, putting the vote off until after elections presents difficulties. Time would be short; Democrats would delay. If Democrats won the White House or Senate, they would argue legitimacy requires no vote. They would pressure Republicans, arguing the new President should nominate, and new Senate confirm. These obstacles could be overcome, but downstream effects on nominations, judicial legitimacy, and possible court-packing – could be serious.
Fact: Historically, a nominee by a President of the same party has been confirmed in an election year, while one presented by a president of the opposing party has not. Thus, in February 2016, when Justice Antonin Scalia – a Republican – died, President Obama nominated Merrick Garland to replace him. A Republican Senate did not vote. Trump won in 2016, and Neil Gorsuch was then nominated and confirmed.
Fact: This distinction is challenged by Democrats, who argue any nomination in an election year should wait. But that puts the seat in double jeopardy: If Trump wins, but Senate goes Democrat, that nixes the confirmation. If Biden wins, regardless of Senate control, the nominee becomes Biden’s.
Fact: The Senate faces a dilemma. They can vote on Trump’s nominee now, putting future control of the Senate in jeopardy. That would seat a conservative – changing judicial history – but might trigger court-packing if Biden won and Senate flipped. Or Republicans could put off the vote, giving moderates a pass but risking post-election pressure. Finally, they could allow moderates to vote “no,” yet squeak by with enough votes pre-election to gild the lily.
In the final analysis, peripheral facts play big. If Trump’s pick is supremely qualified, and stands up well to scrutiny, one or two Democrats might flip, like conservative Joe Manchin of West Virginia or endangered Alabama Senator Doug Jones, who might pull a Sun-Tzu.
Another peripheral fact is wild polling. If a moderate felt they could vote yes, they might accede to a pre-election vote. Of note too are the “dying words” of Ginsberg, who reportedly said she preferred a vote wait until the next president was seated.
Most ominously, Democrats threaten to pack the Court if Biden wins and they get the Senate. That prospect is interesting, sure to stir opposition. It could hurt eventually Democrats, while fracturing the court, upending precedent, and undermining the legitimacy of decisions.
Two final facts about court-packing. Franklin Delano Roosevelt tried, and it backfired. He thought he could push six justices onto the Court, politicize it. The move almost cost him everything – domestic legislation, support for “lend lease,” reelection. The idea burned him.
Finally, little mentioned, Ginsberg was strongly opposed to court packing. In 2019, she was aware of the implications, said: “Nine seems to be a good number, it’s been that way for a long time,” adding “I think it was a bad idea when Franklin Delano Roosevelt tried to pack the court.”
Pressed by National Public Radio, she got precise: “If anything would make the court look partisan, it would be that – one side saying, ‘when we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’” No, that is a bad idea. See https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive.
So, if we are to take the Justice’s words into account, perhaps Democrats eager to tip the Court should reconsider FDR and Ginsburg – both of whom disfavored court-packing. If court-packing is politically untenable, it goes away. If court-packing fades, when should they vote?
In the end, President Trump’s nominee must be seated. The debate around that nominee will froth, regardless of whether the vote is before or after. The issue, and implications for abortion, Obamacare, immigration, national security, and a host of legal issues, is significant.
If Senate Republicans can explain their position, and afford to lose one or two votes, the issue should be resolved fast. If fear of reelection dominates Senate Republicans, they might consider the prospect of lose-lose, win-lose, and win-win. If they wait until after the election, they may lose high ground, critical time, Senate control, and the White House, causing momentum to fall back on them, gaining absolutely nothing – including no new seat.
If they vote pre-election, they should win, take the issue off the table, leave a legacy, add support to the base – even if moderate Senators must explain. Net-net, this is a tough one, but action beats waiting – and if the election should by a harrowing mishap go to the Supreme Court, the composition will be … different. Just a thought.