The Corner

Law & the Courts

David French’s Deal on the Courts

Republicans should hold off on a confirmation vote to replace Justice Ginsburg, he writes, until after the election. Then, if Biden wins, the president-elect and the lame-duck Senate majority should cut a deal: The Republicans will leave the seat open, and in return Biden will agree not to sign any legislation to expand the Supreme Court.

Let’s assume that we’ve had the election without a confirmation vote; that Biden has been elected; but that Republicans have narrowly maintained control of the Senate. Why are they supposed to refrain from confirming the Supreme Court nominee at that point? They don’t need to worry about court packing over the next two years. Given the likely Republican pick-ups in 2022 under President Biden, they don’t need to worry about it in the two after that.

Or let’s say the elections return a President Biden and a 51–50 Democratic Senate. Should Republicans let go of a lifetime appointment for a conservative justice because they worry that all of the Democratic senators, including Joe Manchin of West Virginia, will retaliate by packing the courts? If that’s the trade-off, it seems like a risk worth taking.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.