September 22, 2020

Replacing Ginsburg

“The death of Supreme Court Justice Ruth Bader Ginsburg just six weeks before the election cast an immediate spotlight on the crucial high court vacancy, with Senate Majority Leader Mitch McConnell quickly vowing to bring to a vote whoever President Donald Trump nominates.” AP News

See past issues

From the Left

The left argues that Ginsburg’s successor should be confirmed after the election.

“Anyone who took [McConnell] at his word when he rejected Merrick Garland’s nomination was made a fool when he reversed himself on the question of whether (to quote the man himself) ‘the American people should have a voice in the selection of their next Supreme Court Justice.’…

“This nation’s decline accelerates when the conventional wisdom becomes that believing what the Senate Majority Leader says is self-evidently foolish. The chestnut that politicians always lie is overstated—a society depends on some degree of mutual trust. One party has embraced nihilism, pilloried trust, and turned good faith into a sucker’s failing in a sucker’s game.”
Lili Loofbourow, Slate

Many also note that “For all the talk of Merrick Garland’s ‘stolen’ Supreme Court seat, McConnell wasn’t cheating. He was playing what Georgetown University Law Center professor Mark Tushnet calls constitutional hardball… And while you may not like hardball, to an extent, that’s the point. This is a country with elections, and the idea is if politicians’ deployment of hardball tactics becomes unpopular, they’ll lose their elections and things will change…

“McConnell’s actions [in 2016] were unpopular. Polls showed that voters believed the Senate should have held hearings on confirming Garland to the Court. And when the votes were counted in November, Hillary Clinton got more than Donald Trump and Democratic Senate candidates got more votes than Republican ones. But the GOP retained a Senate majority, Trump became president, and Neil Gorsuch sat on the Supreme Court… McConnell’s hardball isn’t a fair game — his ideas don’t need to be popular to win, and his unfair advantage in one arena extends its power into other arenas.”
Matthew Yglesias, Vox

“For one thing, undue haste is an abdication of Senate responsibilities. Of the last 13 confirmed nominations, stretching back to Scalia in 1986, none were confirmed as quickly as a new Trump nominee would have to be in order to be sworn in before Election Day on Nov. 3. Ginsburg’s 1993 confirmation process came closest, at 42 days. The next shortest confirmation, for Chief Justice John Roberts, took 62 days in 2005. It’s safe to say that Trump’s pick will be more divisive than either of those selections (Ginsburg was confirmed 96 to 3, and Roberts won the votes of half of the Democrats in his 78-to-22 confirmation)…

“What’s really startling, though, is how the Supreme Court nomination wars since 2016 demonstrate how severely the normal rhythms of political representation have broken down. The Republican Party and its politicians now reject compromise and see no reason to seek the support of anyone but their strongest supporters…

“[President Ronald] Reagan used his first-term Supreme Court selection, [Sandra Day] O'Connor, to reach out beyond his original coalition even though he had just been elected by a large plurality and brought a new Senate majority with him. In 2017, Trump — coming off a fluky, narrow electoral college win, and already unpopular — nevertheless chose a very conservative nominee.”
Jonathan Bernstein, Bloomberg

Some argue, “Which do you think McConnell would rather talk about: the ACA being struck down, or how many days of floor debate a Supreme Court nominee ought to get? That’s where Democrats’ focus should be: the threat a far-right Supreme Court poses. That court could take health care from millions, attack abortion rights, continue its war on collective bargaining and workers’ rights, eviscerate campaign finance laws to make it easier for the wealthy to buy elections, roll back environmental protections, and so much more…

“That is what Democrats should be talking about: not procedures, not parliamentary maneuvers, not what Republicans said in 2016 about Merrick Garland, but the dire consequences for all of us when the court moves even further to the right.”
Paul Waldman, Washington Post

“A smartly designed term-limit plan would remove the role of fortune in determining how many justices a president gets to nominate. Justices’ terms could be designed to end in a staggered manner so that an equal number of openings come up in every presidential term. Over time, more justices would have impact, preventing the idiosyncratic preferences of one or two individuals from determining U.S. jurisprudence for decades…

“This plan would also eliminate the incentive for presidents to pick young and relatively inexperienced judges merely because they are likely to live longer. And leaders from both parties could tell their voters that they have ensured that the other side will never again get a lifetime appointment. A party that more often won the presidency still would have an advantage over time. That is good: Elections should matter. But they would matter in a predictable, rational way.”
Editorial Board, Washington Post

From the Right

The right argues that Ginsburg’s successor should be confirmed immediately.

The right argues that Ginsburg’s successor should be confirmed immediately.

“For the past several decades, Republicans have run on appointing and confirming conservative Supreme Court justices who strictly follow the Constitution. That is especially true for the current president and Senate majority, neither of which would exist were it not for the issue of judicial appointments… It’s difficult for me to see what Republicans could run on in any future election if they had the chance to confirm a conservative judge and secure a solid majority on the court and instead allowed the seat to be filled by a liberal…

“Did anybody talk about the legitimacy of the court when Democrats blocked a perfectly qualified Robert Bork because they disagreed with him? When the Joe Biden-led Judiciary Committee leaked news of a confidential FBI report in an effort to smear Clarence Thomas?… When they nuked the filibuster to get more of President Barack Obama’s nominees confirmed? When top Democrats promoted gang rape accusations against Kavanaugh? No, instead, the media cheered all of this on, because nobody raises questions about legitimacy in response to Democratic escalations in the judicial battles.”
Philip Klein, Washington Examiner

“It didn’t have to be this way; not every Supreme Court fight was destined to turn into Ragnarok. We had a long era of bipartisan support for any Supreme Court nominee deemed sufficiently qualified, regardless of that judge’s philosophy or past decisions. The Senate confirmed Antonin Scalia 98–0, Anthony Kennedy by a vote of 97–0, Ruth Bader Ginsburg herself was confirmed by a vote of 96–3, and Stephen Breyer by 87–9. The pattern of bipartisan support ended in the George W. Bush years, with John Roberts confirmed 78–22, and Samuel Alito was confirmed 58–42…

“The overwhelming majority of officeholders in Washington operate on the high-minded principle that ‘I should get what I want, and the only ‘fair’ outcome is that I get what I want.’ Once a plurality of Democratic senators rejected the notion that they should evaluate potential justices merely on qualifications, it was inevitable that Republican senators would adopt the same approach.”
Jim Geraghty, National Review

“There have been 29 [similar] vacancies, and presidents made nominations for all of them, in most cases promptly: In 19 cases, the president’s party held the Senate; 17 of the 19 vacancies were filled, the exceptions being the bipartisan filibuster against Lyndon Johnson’s nominees in 1968 and George Washington’s withdrawal and resubmission in the next Congress of a nominee who was ineligible to be confirmed… Three were confirmed in lame duck post-election sessions even though the president had just lost reelection…

“In ten cases, the party opposing the president held the Senate; only one of the ten got a nominee confirmed before the election, two were confirmed after the election when the president’s party won the election, and one (Dwight Eisenhower’s nomination of William Brennan) was a pre-election recess appointment that was confirmed by the new Senate in the new year after Eisenhower was reelected.”
Dan McLaughlin, National Review

“[Senator] Lamar Alexander… put the argument as succinctly as anyone on Sunday: ‘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. Senator [Mitch] McConnell is only doing what Democrat leaders have said they would do if the shoe were on the other foot.’…

“One good argument for a vote before Nov. 3 is having a full Court of nine Justices in the event of a contested election (see nearby). The country would not be well served by 4-4 votes that allow disputes to be settled by a cacophony of lower courts. The Court itself will suffer if it looks dysfunctional on the crucial legal questions surrounding the legitimacy of an election.”
Editorial Board, Wall Street Journal

“For many conservatives the high court eviscerated its own authority decades ago, when it set itself up as the arbiter of America’s major moral controversies, removing from the democratic process not just debates about sex and marriage and school prayer but life and death itself… Since I became opposed to abortion, sometime in my later teens, I have never regarded the Supreme Court with warmth, admiration or patriotic trust. What my liberal friends felt after Bush v. Gore or after Brett Kavanaugh’s confirmation or in imagining some future ruling by Amy Coney Barrett, I have felt for my entire adult life.”
Ross Douthat, New York Times

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