The Supreme Court: What's Next?

Justice Ruth Bader Ginsburg, a celebrated lawyer, jurist, and cultural icon, passed away on Friday at age 87. My first instinct was to post “Requiescat in pace, Justice Ginsburg,” but Senate Minority Leader Chuck Schumer (D., New York) had different ideas.

He tweeted, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

The late Justice Ginsburg

Keep in mind that the Senate has the constitutional power to “advise and consent” to presidential appointments to the courts. In 2016, the Senate—which had a 54-46 Republican majority in part due to voter anger at former President Barack Obama—declined to consider Judge Merrick Garland, Obama’s nominee for the late Justice Antonin Scalia’s seat. The Senate’s stated rationale, given by Majority Leader Mitch McConnell (R., Kentucky), was Obama’s status as a lame-duck president—and the upcoming 2016 presidential election.

This move was controversial among Democrats, but it did not prevent the Republicans from winning the House, the Senate, and the presidency that November.

This time around, McConnell has indicated that he will hold a vote on President Donald Trump’s nominee to replace Ginsburg. The Republicans’ apparent shift between 2016 and 2020 spurred a Twitter uproar and charges of hypocrisy, but those complaining neglect a few important details.

First, Democrats were as ardent in their support for a vote on Garland as they are in their opposition to considering Trump’s nominee, which also smacks of hypocrisy. Politicians will always be politicians, saying and doing what it takes to achieve their desired ends. Therefore, it is as disingenuous to talk about an imaginary “McConnell rule” as it is to talk about the Biden rule.

Second, midterm elections are a more recent manifestation of voter will than presidential elections. Since the GOP won the Senate in 2014 (netting nine seats) and 2018 (netting two), they had a clear mandate to consider Obama’s appointments in 2016 and they also have one now. Senate Democrats did not enjoy this advantage in 2016 or 2020.

Third, parties are not entitled to a portion of the Supreme Court’s seats. It is happenstance that the Republicans declined to consider Garland in 2016 and ended up winning that fall, and it is also happenstance that Trump will have the opportunity to fill an additional two seats in his first term. Anyone claiming that this is unfair should consider Franklin Delano Roosevelt’s nine appointments to the Supreme Court.

The question that remains is not whether Trump can make an appointment, or whether the Senate can justifiably consent to that appointment, but whether it would be politically expedient to do so. If Trump nominated a conservative jurist—say, Judge Amy Coney Barrett—and the Senate confirmed him or her before the election, the Republicans could suffer politically for two reasons: (1) voters who comprise the Republican base would have less motivation to turn out and (2) moderate voters may see the confirmation as undemocratic or unfair.

If Trump wants to maximize his political advantage and minimize potential harm, he should name his choice and turn the Supreme Court into a campaign issue. This would also give vulnerable Republican Senate candidates an important issue to run on, especially in red states (e.g., Martha McSally in Arizona). 

Nonetheless, if Trump wants to appoint his third justice and the Senate wants to confirm him or her, that is the constitutional and institutional prerogative of the president and the Senate. It would be wretched and dangerous for the Democrats to respond to a legitimate confirmation with institutionally-destructive moves like canceling the filibuster or expanding the size of the Supreme Court.

All unsigned FDL Review content is the product of Declan Hurley.