The Morning Jolt

Law & the Courts

What the Constitution Actually Says about Supreme Court Judges

President Donald Trump delivers remarks on judicial appointments during a brief appearance in the Diplomatic Room at the White House in Washington, D.C., September 9, 2020. (Jonathan Ernst/Reuters)

On the menu today: how little the Constitution says about replacing a Supreme Court justice, and why cries of a “stolen” Supreme Court seat are nonsense; President Trump has a shockingly human reaction to the passing of Ruth Bader Ginsburg; and the unsavory subtext to the pop-culture celebration that surrounded the “Notorious RBG.”

In the Weeks and Months Ahead, Remember to Check the Constitution

Here is the entirety of what the U.S. Constitution says about the president’s power to appoint justices to the Supreme Court:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

It doesn’t say anything about how close the vacancy is to Election Day. It doesn’t say anything about whether the Senate has to hold hearings about the nominee. It doesn’t say anything about whether the Senate has to vote on that nominee; a refusal to vote on the nomination, as occurred with Merrick Garland, is a de facto rejection. It doesn’t say anything about whether the Senate can vote in a lame duck session.

This means President Trump can nominate anyone he likes up until noon on January 20, 2021, if he isn’t reelected. The Senate can choose to hold a vote on that nominee anytime it likes. Or it can choose not to hold a vote on that nominee. If the Democrats win a majority of the seats in the Senate, they take over on January 3, 2021. If the Senate is a 50-50 split and Joe Biden wins the presidency, then Mike Pence breaks ties up until January 20, and then Kamala Harris breaks ties in the afternoon.

In case you’re thinking about the old “leave town and refuse to come back to deny the opposition a quorum” trick, the Constitution requires the U.S. Senate to have 51 senators present to hold a vote. If all 47 Democrats and Democrat-aligned independents leave town, the 53 Republicans present can vote to confirm anyone they like — as well as pass any legislation they like. The filibuster is no longer in effect in these circumstances. In 2013, Senate Democrats led by Harry Reid nuked the filibuster for judicial nominees except the Supreme Court; in 2017, Senate Republicans led by Mitch McConnell followed suit and nuked the filibuster for Supreme Court nominees.

In short, if the president’s party has 50 votes in support of a nominee, the nominee will be confirmed.

Politically, it may be worthwhile for President Trump to take his time. Fate has just given him a huge and consequential decision. Until the president announces his nominee, the question “who will Trump nominate?” will be the biggest story in the country — bigger than Bob Woodward’s book, bigger than the wildfires in the West, even bigger than the ongoing pandemic — barring some new spike in cases.

There are 46 names on the lists of potential nominees released by Trump in 2016, 2017, and 2018. All of them are the kind of potential justices that conservatives will cheer — although there are some philosophical differences here and there. The Democratic effort to paint the early frontrunners, Amy Coney Barrett and Barbara Lagoa, as extremists is already underway. But Trump could pick anyone on his list; the Democrats could spend weeks demonizing Barrett and Lagoa and then Trump could pick Allison Eid or Amul Thapar or any one of the other names that have received less attention.

You no doubt have heard about Ruth Bader Ginsburg’s statement, “my most fervent wish is that I will not be replaced until a new president is installed.” The dying wishes of justices do not outrank the U.S. Constitution. No president is obligated to sacrifice some constitutionally authorized power because a justice wishes she had retired four years earlier. (More on this below.)

You’re going to hear a lot of shouting about Republicans “stealing” this seat . . . by following the Constitution.

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.

In January 2006, then-senator Barack Obama declared: “I will be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values.” “When you look at his decisions — in particular, during times of war — we need a court that is independent and is going to provide some check on the executive branch.”

By 2016, then-president Obama, now in the position of nominating Supreme Court justices instead of voting on them, said that filibustering Supreme Court justices was “just throw[ing] sand in the gears of the process.” Earlier this year, Obama denounced the filibuster as “another Jim Crow relic” in his eulogy of John Lewis.

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.

You can argue that the Republican-controlled Senate of 2016 should have at least held hearings on Merrick Garland. But that Senate had a 54-seat GOP majority, and it was extremely unlikely that four Republicans would have flipped to replace Scalia with Garland or any other Obama nominee. You simply were not going to get 50 votes to replace the conservative judicial icon with any Obama selection. If a president wants to replace a Supreme Court justice, he needs at least 50 senators who approve of his nominee, period.

Trump’s Most Shockingly . . . Appropriate Moment

When the news broke that Justice Ginsburg had passed, President Trump was giving a speech, and no one interrupted him. After the speech ended, C-SPAN cameras were in the right place at the right time to witness Trump learning of her death, and Trump was . . . shockingly appropriate, somber, and generous.

“Just died? Wow, I didn’t know that, I just, uh- you’re telling me that for the first time. She led an amazing life. What else can you say? She was an amazing woman, whether you agreed or not, she was an amazing woman who led an amazing life. I’m actually saddened to hear that. I am saddened to hear that.” In a perfect irony, Elton John’s “Tiny Dancer” is playing in the background.

You watch that and wonder . . . if he’s capable of being an empathetic human being . . . why doesn’t he do it more often?

What Drove the RBG Pop-Culture Phenomenon

Ruth Bader Ginsburg wasn’t just any Supreme Court justice. You just don’t see Stephen Breyer action figures, apparel, pins, Christmas ornaments, T-shirts, earrings . . . there’s a Ruth Bader Ginsburg board game. Somewhere along the line, the “notorious RBG” turned into the Democrats’ idealized feisty grandma, the Sophia Petrillo of modern liberalism, who was hip and cool precisely because she was so old, who was considered an icon of strength and endurance because of her diminutive size and quiet voice, who was a celebrity because she didn’t make public appearances so frequently.

I thought one of the sharpest assessments of the RBG pop-culture phenomenon came from Mother Jones’s Stephanie Mencimer, who observed that it kicked into higher gear once Trump became president. Some Democrats and liberals argued, fairly, that Ginsburg should have retired sometime in Obama’s second term — both to maximize the odds of a like-minded successor and to recognize the health issues that come with age.

It’s not considered polite to point this out, but Ginsburg has been falling asleep on the bench during oral arguments for years. Back in 2006, she dozed off during a redistricting argument for a good 15 minutes — long enough for the courtroom artist to sketch her in repose. The Washington Post’s Dana Milbank wrote, “It’s lucky for Ginsburg that the Supreme Court has so far refused to allow television in the courtroom, for her visit to the land of nod would have found its way onto late-night shows.”

It’s not just oral arguments that were a problem. Ginsburg fell asleep during two of Obama’s State of the Union addresses and during Pope Francis’s 2015 speech to Congress — Justice Sonia Sotomayor had to give her a nudge to wake her up. If Ginsburg couldn’t put herself to bed at a reasonable hour to avoid falling asleep in public — a basic function of her job — what made anyone so sure that her judgement about retirement was any more realistic?

In March 2014, with the window for Obama replacing Ginsburg closing quickly, Dahlia Lithwick published a Slate commentary headlined: Ruth Bader Ginsburg Is Irreplaceable. All You Liberals Trying to Push Her Out, Think About That. Liberals, Lithwick wrote, were wrong to suggest that anyone could truly fill Ginsburg’s tiny shoes: “Telling her that her work is awesome, but it’s time to move on, is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate.”

The RBG action figures and the pushup videos will be paltry balm for the damage likely to be done to racial equality, LGBT rights, and reproductive freedoms if Trump is allowed to replace Ginsburg. By refusing to gracefully transition off the court when Obama could have named her successor, she has raised the very real risk of her seat being filled by someone who will spend a generation trying to undo all she worked for.

If that happens, RBG will become truly notorious.

Ginsburg was indisputably tough. Since 1999, she fought off cancer in her colon, lungs, pancreas, and liver.

But the relentless pop-culture celebration of Ginsburg’s vitality — despite the chemotherapy, radiation, multiple surgeries, artery stent, and multiple falls — represented a bit of wish-casting. Democrats desperately wanted to believe that she hadn’t made a mistake by not retiring in, say, 2014, when Democrats controlled the Senate and that she would live at least past January 20, 2021. If she had lived to be replaced by a like-minded judge, Ginsburg’s decision to not retire in 2014 would have no consequence. But now? Now that decision looks a little less like her relentless devotion to her duties as a justice and maybe a little bit arrogant, a little too confident she could outlast the Trump presidency. Democrats want to love RBG, and probably always will. But they would happily have traded Ginsburg’s last six years on the court for a like-minded replacement.

ADDENDUM: The show must go on! Please join us for an historic event: National Review Institute’s William F. Buckley Jr. Prize Dinner “Gala at Home” on October 5 honoring James L. Buckley and Virginia James. Guests will be invited to put on their tuxedos and ballgowns, grab a glass of champagne, and join us for a virtual experience. The program will include opportunities to connect with NR writers and dinner guests and tune in to a mix of live remarks and videos from our honorees and dinner co-chairs. Your ticket or sponsorship will be fully tax-deductible and go to support NRI’s educational and outreach programs that advance the NR mission during this critical time in our nation’s history. Don’t wait. RSVP today.


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