Antonin Scalia, Barack Obama, Biden Rule, conservatives, Constitution, Democrats, election 2020, elections, Ginsburg, Im-Politic, Joe Biden, lame duck Congress, liberals, Merrick Garland, Mitch McConnell, Republicans, rule of law, Ruth Bader Ginsburg, Senate, Supreme Court, Trump
I call this piece “The Supreme Court Mess I” rather than “The Ginsburg Mess I” because the fix in which the nation finds itself regarding the replacement of the late Supreme Court Justice Ruth Bader Ginsburg reflects a number of much deeper problems America is suffering. These stem from the firestorm-like nature of some recent battles over the roster of this nearly (but not quite paramount) arbiter of the Constitution, which makes it a the nearly last word regarding the entire U.S. legal system and its often decisive, lasting effects on every dimension of American life. (The Roman numeral tells you that there will be another post on this subject coming real soon, probably tomorrow.)
Today we’ll focus on the immediate question at hand: whether the Senate should vote on President Trump’s nominee for a new Justice. To me, the only answer with any merit: Absolutely. Indeed, nothing could be stronger, and more important to affirm, than the conclusion that any President has every right to nominate a new Justice at any time during any of his or her terms in office (i.e, through Inauguration Day, January 20), and that the Senate has every right to vote on his choice during this time. Why? Because it’s what the Constitution says, and neither the Framers nor any American leaders have ever formally tried to change the system since 1789. That is, there are no exceptions made – including for presidential election years, as many Democrats are calling for now.
If you think about it non-hysterically, you can see why. Abandoning this standard opens the door to the kind of bizarrely and indeed laughably convoluted and self-serving case being made now by Republican Senate Majority Leader Mitch McConnell of Kentucky to explain why (a) he’s decided to allow a vote on a Supreme Court nominee this presidential election year, but (b) refused to allow former former President Obama’s appointment of Supreme Court nominee Merrick Garland be considered during the previous presidential election year.
According to McConnell, the governing principle for Court nominations is the result of the latest Senate election. As he wrote right after Ginsburg’s passing:
“In the last midterm election before Justice [Antonin] Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.
“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, To
To which the only serious reaction has to be “Seriously”? Not only is this position even further from the Constitutional standard than the presidential carve-out position. If it’s followed, it’s easy to see how other unscrupulous politicians could use even more arbitrary maxims like this to completely paralyze the Supreme Court nomination process.
After all, if it’s the Senate’s makeup that counts most of all, then why not bar nominations during the run-up to such elections – which of course take place every two years (when a third of the Senate faces reelection). For by McConnell’s logic, it wouldn’t be possible to know the people’s will on such matters for certain until those Senate results are in. And how would anyone define “run-up”? A month? Two? Six? A full year? On what objective basis could anyone distinguish among these possibilities? The only reasonable answer? None.
Lest you want to blame Republicans alone for this kind of sophistry, keep in mind that its origins lie in the so-called “Biden Rule” – when in 1992, the former Vice President and current Democratic presidential nominee argued that “once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” And in an example of poetic justice, McConnell and many other Republicans and conservatives cited this reasoning to justify their own Supreme Court positions when former President Barack Obama in March, 2016 nominated senior federal judge Merrick Garland to fill the seat left by Scalia’s death in February.
Three final observations: First, any number of politicians and pundits are citing various supposed historical traditions for justifying their stances on election year Supreme Court votes. (See here for Republicans and conservatives, and here for Democrats and liberals.) To which I can only say, “Tradition, shmadition.” As indicated above, although interpretation is possible and often needed for all laws and many Constitutional provisions, when the latter set out clearcut procedures – as for the nomination and approval of Supreme Court Justices (but not so much for impeachment) – Americans drift away from them at their peril. If you don’t like these procedures, then use the amendment process of the Constitution to change them, rather than pretending that traditions and non-legal precedents and other practices are adequate substitutes.
Second, equally ludicrous and even more dangerous is the claim that the nation’s current divided circumstances justify waiting until after the presidential election to fill the Ginsburg seat. That’s essentially warning that violence may erupt if the President and Senate exercise their Constitutional prerogatives, and in effect supporting a surrender to the threat of mob rule.
It’s absolutely true that practically all decisions made by political leaders – elected and unelected alike – are at least partly political in nature, and can profoundly affect the national interest short term and long term. It’s entirely legitimate, therefore, and even important for President Trump to take into account in his Ginsburg approach non-Constitutional considerations.
But it’s something else entirely, and far more dangerous, to contend that such judgment calls are or should in any way be legally binding. As with federal government personnel choices, Constitutional procedures can be used to protest and overturn presidential or other decisions that are entirely legal but unpopular for whatever reason. They’re called elections, and Americans would do far better to focus on taking all (legal) steps to ensure that their candidates and viewpoints prevail, rather than dreaming up spur-of-the-moment rationalizations for ignoring settled law that may create momentary advantages, but that contain equal backfire potential, and that can only erode the rule of the law to everyone’s ultimate detriment.
Third, my only strong preference in this matter is that a Senate Supreme Court vote not take place during a lame duck session – which would be convened after the presidential election. That’s because a possibly decisive number of Senators who would be considering the nomination would be Senators who have been voted out of office. What an offense to the idea of representative government that would be! At the same time, it’s only my preference. These sessions themselves are entirely legal, and I’m not about to claim that my views should substitute for Constitutional procedures.