Law & the Courts

Replacing Justice Ginsburg: Politics, Not Precedent

The American flag flies at half staff outside the U.S. Supreme Court following the death of Justice Ruth Bader Ginsburg, Washington, D.C., September 18, 2020. (Al Drago/Reuters)
The timing of Justice Ginsburg’s replacement is strictly a matter of political calculation.

Justice Ruth Bader Ginsburg lived an extraordinary American life and leaves it with glowing admiration from even those who disagreed with her. That’s all any of us can hope for.

It is an unseemly but by now commonplace sign of our times that, even though she passed away just as Rosh Hashanah had begun, the politics of a now-vacant Supreme Court seat could not be put on hold for a day, or even a few hours. On the other hand, Justice Ginsburg herself fanned the political flames. In her last days, she dictated a statement, made public after her death, expressing fervent desire that she “not be replaced until a new president is installed.”

Since Supreme Court justices usually choose their words with care, we have to assume this is a wish not only that the seat remain unfilled until after January 20, but that a new president be elected in the interim. It is understandable that Democrats are already exploiting the emotional power of a liberal giant’s dying wish. Yet, while we honor Justice Ginsburg’s remarkable life, we owe her no more deference on the timing of her replacement than on the outcome of the November election.

The timing of her replacement, instead, is strictly a matter of political calculation.

On this, I will say what I always find myself saying when a vacancy on the High Court opens: It is ridiculous for leading senators, administration officials, influential partisans, and pundits to enunciate the high-minded principles and precedents that supposedly control the propriety and timing of a nomination.

In reality, there are only two rules, both set forth in the Constitution: A president, for as long as he or she is president, has the power to nominate a person to fill a Supreme Court seat; and that nominee can fill the seat only with the advice and consent of the Senate. That’s it. Everything else is posturing. Everything else is politics.

There are no rules about what happens in the last year of a president’s term, nor codicils that hinge on whether the Senate is controlled by the president’s party or the opposition. For example, there was nothing inappropriate about President Obama’s nominating D.C. Circuit judge Merrick Garland after Justice Antonin Scalia died months before the 2016 presidential election; nor was there anything wrong with Senator Mitch McConnell’s holding his Senate majority together to block the nomination — against the caterwauling of the media-Democrat complex.

Everything about that episode was political. If the vacancy had opened earlier in his presidency, or when the Democrats controlled the Senate, Obama would have nominated someone younger and more left-wing than Garland — someone like Justice Sonia Sotomayor (whom Obama did pick years earlier). He chose Garland, a well-regarded, then-62-year-old moderate, only because Senate Republicans held the whip hand: Nothing in the law required them to consider the nomination, so the president’s only hope was to turn up the heat politically. Republicans would have felt no pressure if the president had nominated a radical, so he chose someone who seemed to be as palatable as possible for Republicans (while still being a reliable liberal on important cases).

For their part, Senate Republicans understood that Justice Scalia was a conservative icon, that the base would have mutinied if they’d rolled over for an Obama pick, and — most significantly — that the alarming prospect of a President Hillary Clinton choosing Scalia’s replacement dramatically improved Donald Trump’s chances to win the presidency . . . and thus for Republicans to control judicial nominations for four years.

Of course there was risk: Clinton was heavily favored to win, and had she done so, she’d likely have withdrawn Garland’s nomination in favor of someone younger and more left-leaning. But that’s politics. The calculations on both sides made sense, and none of the maneuvering was dictated by a legal or precedential rule.

President Trump has the power to make nominations until at least noon on January 20, and maybe for another four years after that. For the time being (at least until the beginning of January), Republicans control the Senate by a fairly thin margin, 53–47. The president has the power to make a nomination, and the Senate has the power to confirm the appointment. Period.

It doesn’t matter who said what when. It doesn’t matter that McConnell in 2016 rationalized blocking Garland by claiming that the issue of replacing Scalia should be settled by the imminent presidential election. It doesn’t matter that Democrats demanded that Garland get a vote. It doesn’t matter that Joe Biden, when he was Senate Judiciary Committee chairman, said he would not consider any Supreme Court nomination made by President George H. W. Bush in the presidential-election year of 1992 but then in 2016, as Obama’s vice president, inveighed against the Senate for refusing to consider Garland’s nomination. It doesn’t matter that Obama nominated Garland before the last election but now says Trump must not try to replace Ginsburg before the coming election.

These politicians are all over the mat because the vaunted precedents they were purporting to rely on were embarrassingly thin camouflage for power politics. That is what dictated their behavior — then as now.

That said, the fact that the president has the power to name a replacement for Justice Ginsburg and that Republicans have a majority to get the nomination approved does not necessarily mean that that’s the smart play.

Of course, Trump could lose in November and the Republicans could lose their majority. That would militate in favor of the president’s naming a strong judicial conservative and McConnell’s trying to move it across the goal line. Personally, I was hoping for Judge Amy Coney Barrett the last time, and I still am. As a conservative Republican, I hope the Democrats do not sweep the November election, but I also have to recognize that it may be a long time before Republicans have another opportunity to shape the Supreme Court. And if the shoe were on the other foot, there is no doubt that the Democrats would ram a nomination through in nothing flat.

So . . . carpe diem, right? Not necessarily.

I am far from convinced that Senator McConnell will have the 50 votes he needs (with Vice President Pence as the tie-breaker). He can only stand three defectors, and if it gets to four there will be more — bank on it.

Moreover, there will be great outrage on the left if Republicans push a Trump nominee through while Democrats are screaming bloody murder (and if you thought the streets were already aflame, you ain’t seen nuthin’ yet). It is always possible that Republicans will be energized by a Supreme Court nomination battle, but the lift they seemed to get during the hellacious fight to confirm Justice Brett Kavanaugh evaporated before the 2018 midterms.

I’d thus wager that a determined Republican effort to replace Ginsburg in the coming weeks would increase the chance that Biden defeats Trump, and that Democrats take the Senate while holding the House. If that happens, Democrats will repeal the filibuster, add four to six seats to the Supreme Court, and pack it with liberal ideologues. Whatever benefit will have been achieved by confirming a Trump nominee will be overwhelmed. And that may be the least of our problems.

The best play, particularly if Republicans lack the Senate votes they need anyway, would be to use the vacancy as a core issue in the 2020 campaign. This worked for Trump in 2016 — indeed, it got him elected, ever so narrowly.

To be sure, Democrats are going to be more galvanized this time because the shoe is on the other foot: The prospect of a Republican replacing the Court’s leading liberal will alarm them as much as the prospect of Clinton choosing Scalia’s replacement alarmed Republicans. Nevertheless, as a political issue, the Court cuts in favor of Republicans. That is why Trump is already touting a list of potential nominees.

For all the Democrats’ hysteria about the purportedly imminent reversal of Roe v. Wade (that never happens), every time a conservative is appointed, the fact is that Republican judicial nominees are forces of stability who favor judicial restraint, enabling Americans to determine democratically how they wish to live. By contrast, the public rightly sees Democratic judicial nominees as forces of radical change, imposed by judicial fiat at the expense of democratic self-determination. That is why Biden does not want to release his list of potential Supreme Court nominees. Democrats prudently fear that it would frighten voters and hurt his chances.

For now, President Trump is signaling (by tweet) that he intends in short order to announce a nominee to fill the vacancy left by Justice Ginsburg’s passing, and that he will push for Senate consideration. There is a good chance that he won’t get Senate consideration before the election . . . but that the nomination of a solid prospective justice, and the inevitable comparison of the kinds of jurists a Biden administration would appoint, will help the president’s reelection bid.

Editor’s note: This essay has been emended since its original publication.

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