The Corner

Law & the Courts

Virtue, Necessity, and the Supreme Court Vacancy

Sen. Majority Leader Mitch McConnell (R-KY) speaks to the media after the Republican policy luncheon on Capitol Hill in Washington, D.C., September 22, 2020. (Joshua Roberts/Reuters)

The death of Justice Ruth Bader Ginsburg has created yet more political pandemonium in a year that has already had far more than its share. And it has also created what can only be described as a tragic set of choices for the political system—options for action that are each permissible and justifiable but also each illegitimate in some significant way. Senate Republicans are going to have to choose a course, and there’s a natural tendency in such circumstances to ignore and deny the legitimacy challenge involved in whatever option we prefer. But it’s worth trying to come to terms with those to the extent we can—each recognizing our own partisanship and the limits of objectivity. So, with apologies for their length, a few observations in that direction.

The first isn’t even about the question of how to replace Ginsburg, but about the pandemonium itself. This situation is of course eerily analogous to the one that followed Justice Antonin Scalia’s death in 2016. And even if both end up redounding to the benefit of my side of aisle, they add up to a stronger case than ever for ending lifetime tenure on the Supreme Court. If justices had a single, say, 18-year term on the Court, after which they would move to a federal appeals court for the rest of their judicial tenures, we could free ourselves from the specter (more at home in monarchies) of being sent into turmoil when an octogenarian dies of natural causes.

You could probably do that without a constitutional amendment, since federal judges would still have lifetime tenure, just not on the Supreme Court. And it might have other benefits too: It could make individual justices a little less important, would give presidents a roughly equal number of chances to fill Court vacancies, and might even make justices slightly more responsible since they’d know they’ll end up in an appeals court working under whatever precedents they create on the Supreme Court. A little-known Missouri law professor named Josh Hawley endorsed that idea in National Affairs almost a decade ago, and his view carries a bit more weight now. I wonder how many of his colleagues agree.

But the more pressing implications of this unexpected vacancy on the court have to do, of course, with filling it. President Trump’s role in that process is straightforward: He’s president when a vacancy has been created on the Court, and he should nominate someone to fill it. He has made it clear that he will, probably at the end of this week. He has some good options (including Judge Amy Coney Barrett, who I think is a great option), and he seems likely to choose one of them.

The question of what Senate Republicans should do in this situation is more complicated. It’s complicated as a matter of civic prudence and of political calculation, not of constitutional technicality. Republicans have a majority in the Senate, and if they use it to confirm a nominee of whom a majority of senators approve, they will have done nothing impermissible, or even particularly unusual. For the Democrats to respond to that, as they have threatened to do, by packing the Court (or adding states to the union or the like) when they next get congressional majorities and the presidency would be constitutionally permissible too, but it would certainly be very unusual, and much more extreme than just confirming a judicial nominee.

But circumstances matter. And the nomination of a replacement for Justice Ginsburg looks like it will come about five weeks before a national election, with the president and a third of the Senate on the ballot. Four years ago, when a similar vacancy occurred several months before the election, Senate Republican leader Mitch McConnell said “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.” He didn’t really mean that, to be sure. What he meant was that Republicans had a Senate majority and would use it to block consideration of a Democratic president’s nominee until after the election. But he said what he said, and it helped keep Republicans in line behind his decision.

Of course, Democrats at the time also couched their opposition to McConnell’s move in similar terms of principle—insisting that the elected president, who served until a new one was inaugurated, should have a chance to get his nominee considered. Both sides have now flipped on this question. But hypocrisy does matter more when you have the power to act on it, as Republicans did then and do now.

Efforts to parse McConnell’s statements at the time to show that he was really referring only to situations when the president and Senate majority are of different parties only go so far. He did sometimes use such language, but the force of his argument was always plainly tied to the election calendar. Republicans used the power they had to keep a Supreme Court seat open, and they said they were doing it because an election was near. There’s a certain logic to that view, and it’s a logic that speaks to many Americans, including many Republicans. Senate Republicans now want to use their legitimate power to push a nominee through despite that logic. That’s fine. But let’s not deny the obvious inconsistency.

Then there is the simple fact that we have witnessed over several decades a series of escalating threats to the integrity of our constitutional system—particularly around the courts—and that these put us on a path that points toward disaster. Both parties have been at fault for these escalations, from the rank politicization of hearings that began with the Bork nomination through the dismantling of various procedural restraints on partisanship in confirmations, to the Republican refusal to grant Merrick Garland a hearing to the disgraceful behavior of the Democrats in the Kavanaugh hearings. All the steps both parties have taken along this path have been legally and constitutionally permissible. But they have also been unwise and damaging to our political culture. And the ones to come look likely to be all the more so.

To this less-than-objective observer, it looks like the Democrats have had much more to do with these escalations. And now, even before Justice Ginsburg’s death, they have been talking about a dramatically greater escalation of packing the Court. But it’s worth seeing that the Democrats perceive this process through the lens of what they take to be a series of other outrages: the hardball played in the Garland nomination, a Trump presidency won with a minority of the popular vote, Republicans justifying various disgraceful presidential misdeeds, the controversy around the Kavanaugh confirmation, and so on. They may be wrong about the moral valence, or even some of the facts involved, in each of these cases. I think they are. But they see them as they do and are outraged by them, and that’s not irrelevant to a political judgement. It is surely true that rushing through a confirmation in the weeks before a presidential election would be another escalation in this process, and would make it more likely (if still fairly improbable) that the Democrats could then muster the willingness to pack the court.

We do need an off-ramp from this path. And that would require restraint, which means it would require choosing not to do something you have the power to do. Such restraint is generally up to the party with the power to act. And that means that at this point, at least, it is up to Republicans. Some thoughtful observers have suggested that this is precisely what Republicans should do, while getting the Democrats to commit to some restraint if they win power in November. It’s a serious idea with serious appeal, but it also calls for an extraordinary concession, unlike anything either party has done in this arena before. To treat it, as some Democrats have, as no concession at all but the obviously appropriate move in this situation is absurd.

In fact, it would be such a lopsided concession as to raise an obvious danger. Republicans are trying to confirm a judge when they have the presidency and senate majority. Democrats would be trying to pack the court in an unprecedented maneuver to artificially empower their new president and senate to take control of it. These are hardly equivalent moves and to trade one for the other would reward extreme threats, and so encourage more. That doesn’t necessarily mean it’s the wrong way forward, only that it would come at great cost—like every other option on the table.

This is the essence of the problem for Senate Republicans. There is no simply correct way for them to proceed here. Every available path involves serious costs and legitimacy problems.

Rushing to a vote before the election would short-circuit the deliberation necessary for such an important appointment. There would be no avoiding the frantic pace of the process, racing to get done before the people have their say, and this is no way to fill one of the most significant Court vacancies of our lifetimes. It would make a mockery of the Senate’s claim to be a deliberative body, and this would have serious implications not only for future Supreme Court confirmations but for arguments about the filibuster and the character of the Senate more generally. And it would further politicize the place of the Court in our system, treating it simply as a political prize. This may still end up striking Senate Republicans as the best option they have, but they need to see what they’d be choosing.

Waiting until after the election, however, risks leaving Republicans to fill the seat after losing their mandate, which would raise its own enormous problems of legitimacy and practicality. That would happen under an even darker cloud than a pre-election rush, and it would be very difficult to muster a majority if one couldn’t be gotten before the election. Republicans would have to make the case that they preferred a thorough and deliberative process to a frantic race to confirm, and that this justifies proceeding even as a lame-duck Senate to properly finish the work they began. It’s an argument that would take the institution seriously, but would be hard to make if the election does not go well for Republicans.

Giving up on the seat altogether, meanwhile, would rightly be seen as a terrible betrayal by many Republican voters, and a basic failure of nerve and resolve on an issue that could hardly matter more. There is a considerable number of Republican voters who have backed the party largely to bring change in the courts, and here is a perfectly legal and constitutional chance to do that. No Republican believes the Democrats would ever willingly pass up a Supreme Court seat under such circumstances. To do so for the sake of a vaguely defined lowering of the temperature, particularly when the Democrats seem disinclined to any such gesture, would be a very strange way to use perishable political power.

Trading the seat for a promise not to pack the court, finally, would be a kind of surrender to blackmail. If the Democrats gain the power to fill a seat on the Supreme Court by threatening constitutional mayhem, why would they not do it again in the future? And in any case, it’s far from clear they would have the will or the votes to act on such a threat, regardless of what happens this year. A deal like this may turn out to be the best Republicans can do, but to treat it as simply a high-minded step forward doesn’t make sense.

And those appear to be all the options that Senate Republicans have—unless of course President Trump is re-elected and/or Republicans hold the Senate. That could certainly happen, but Republicans can’t know whether it will, and most of them seem to think it won’t. So they are stuck with a painful and challenging set of options.

No one should underestimate the costs and tradeoffs involved. I’ve heard some wise and level-headed people suggest that there is no cost to rushing ahead—it’s allowed, it’s politics, it’s how the game is played. I disagree. It would be something of a travesty. I’ve heard it said that civic responsibility and constitutional norms require stepping back from this appointment and inviting the Democrats to step back from their radical fantasies. But a Supreme Court appointment is not a symbolic gesture, and rewarding threats doesn’t feel like a path to comity.

I’m not layering these concerns as a narrative path toward some ideal option. This is it. There is no genuinely responsible option available.

Given this menu, my preference would be to see the Senate take the time to go through a complete confirmation process, which would begin before the election but could only end after it. Even if Republicans lose their majority for the next Congress, or the president loses his re-election bid, or both, they should complete the process and vote in the lame-duck session. That would be very difficult, and involve its own grave questions of legitimacy, but I think it would be better than rushing to jam through a nominee with an election deadline looming. This would be a way to respect the institution and its role, even if a very unsatisfying one.

As a second-best path, if the election goes particularly poorly and Republicans find that too many of them are wavering in their willingness to proceed, some post-election version of the deal that has been proposed in recent days could end up making sense: Republicans should commit as a conference to vote to confirm the nominee unless the Democrats agree to abjure any effort at packing the court, adding states to the union in a partisan fashion, or eliminating the legislative filibuster in the next Congress.

If the Democrats turn down that deal, they will have revealed they prefer playing with constitutional fire to a significant if conventional substantive win. That would motivate even wavering Republicans to vote for President Trump’s nominee. And if the Democrats accept the deal, Republicans would have what they otherwise would anyway, given those wavering Republicans—the same 5-4 majority on the Court they have today—but will have partially disarmed the Democrats and offered an example of a bipartisan stepping back from the brink.

This would be far from an ideal process and outcome, to be sure. But given the tragic set of options they confront, and especially if they prove unable to muster a majority to proceed before the election, it may look to many Republican senators like the best available path.

These are two potential ways to make some virtue of necessity, and to account for the long-term needs of our constitutional system alongside the shorter-term priorities of party politics. I don’t expect it’s where Senate Republicans will ultimately end up, and I respect the impossible position they are in (even if they don’t all see it that way). We can all hope that whatever decisions they do make are guided by a recognition of both the virtues and the necessities at stake.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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