The death of liberal stalwart Justice Ruth Bader Ginsburg has roiled the political waters in this most chaotic political season. Republicans are moving with dispatch to nominate and vote on her successor.
Democrats want to keep the seat open until after the November election when they hope a new President Biden can fill the vacancy.
Senate Democrats threaten that if Republicans confirm a Supreme Court nominee Democrats will take radical action — break the 60-vote legislative filibuster rule and “pack” the court with two or four more Justices in 2021, should they win Senate control.
Democrats fume that Senate Republicans refused to even consider President Obama’s nomination of Merrick Garland to fill the seat created by the death of Justice Scalia in 2016.
They find it outrageous that a vacancy created nine months before the 2016 presidential election went unfilled, while Republicans will confirm a new Supreme Court justice for a vacancy created only a month-and-a-half before the 2020 presidential election.
In their view, it’s fundamentally unfair.
But Democrats have a long history of breaking procedural norms on judges.
Beginning in 1987, Democrats unleashed an unprecedented political assault on highly qualified Judge Robert Bork, a Supreme Court selection of President Reagan.
Bork’s defeat resulted from distortions about his jurisprudence. It began the modern era of hyper-politicized judicial nominations. At the Supreme Court level, it’s largely been a one-way partisan street.
Democrats then escalated to character assassination. Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh each faced vicious personal attacks during confirmation hearings. No Democratic nominee has been “borked,” or disrespected in a hearing.
Senate Democrats pioneered the use of the judicial filibuster to block George W. Bush’s nominees to the circuit courts — also unprecedented. This violation of norms stopped only after the GOP regained the majority and threatened to change Senate rules.
In another norm-breaker, Democrats in 2013 led by Harry Reid broke the filibuster rule for appellate nominees on a party-line vote. The political cost was high. Reid’s precedent allowed Republicans to do the same thing when Democrats tried to filibuster Neil Gorsuch.
The GOP majority can now confirm President Trump’s nominee with 51 votes. With Sen. Mitt Romney’s announcement that he intends to vote on Trump’s nominee “based on their qualifications,” the likelihood of confirmation increases.
Retiring GOP Sen. Lamar Alexander concisely makes the GOP argument:
“No one should be surprised that a Republican Senate majority would vote on a Republican president’s Supreme Court nomination, even during a presidential election year. The Constitution gives senators the power to do it. The voters who elected them expect it. Going back to George Washington, the Senate has confirmed many nominees to the Supreme Court during a presidential election year. It has refused to confirm several when the president and Senate majority were of different parties. Sen. McConnell is only doing what Democrat leaders said they would do if the shoe were on the other foot.”
Trump’s nominee, Judge Amy Coney Barrett, is superbly qualified and already vetted, with some 100 opinions on the Seventh Circuit Court of Appeals since her Senate confirmation in 2017.
An alternative compromise is a presidential recess appointment to the Supreme Court that would remain in place until the beginning of the next Senate session in January. This is authorized by Article II, Section 2, Clause 3 of the Constitution.
There is abundant precedent for Supreme Court recess appointments by a president, including Chief Justice Earl Warren and Justice William Brennan, both made by President Eisenhower.
In the current case, Trump could appoint Barrett via a recess appointment until January, with his expressed intent to make that appointment permanent in 2021 should he win re-election. A Senate confirmation vote would follow thereafter.
Meanwhile, Trump could challenge Biden to identify the African-American woman he has promised to appoint as the next Supreme Court justice.
Jim Hartman is an attorney residing in Genoa. Email firstname.lastname@example.org.