The Supreme Court Battle is an Injustice to the American People
I remember a flyer I got in the mail leading up to the 2016 Presidential Election that had 3 empty seats on it. This flyer from a Trump-backing group was implying that if elected, a President Trump could fill at least 3 Supreme Court Seats, and make the court conservative leaning for a generation.
When Supreme Court Justice Ruth Bader Ginsburg passed away on September 18th, 2020, the nation collectively mourned. She was adored by many people from both sides of the aisle, and of all backgrounds.
Her passing could not come at a worse time. There is a Presidential Election on Tuesday, November 3rd, less than 6 weeks away from the time of writing this article. Now the court is split with the 4 liberals Breyer, Kagan, Sotomayor, and effectively Roberts, plus the 4 conservatives of Kavanaugh, Thomas, Gorsuch, and Alito. This ideological split can lead to a constitutional crisis if something goes wrong in the election. And when the court does split, they revert back to a lower court’s decision, which would likely be a State Supreme Court.
As an example, Florida’s State Supreme Court completely exists ideologically to the right. Whereas the United States Supreme Court is generally split ideologically with a moderate included in modern times.
The Supreme Court could also defer a decision until a new justice is confirmed in the event a case is split. However, that would be a precarious position to be in with the President being the one who appoints the Judges.
Think back to the 2000 presidential election, where the Supreme Court decided 5-4 to stop re-counting ballots in the State of Florida, and gave George Bush the Presidency. Had they only had 8 members who split, this decision may have been kicked back to the original court ruling by the Florida Supreme Court which, depending on how it played out, could have seen Democrat Al Gore win the State.
The United States Constitution is the floor, not the ceiling, and many things in the constitution are open to interpretation. However, there may not be anything more clearly written in the constitution than Article II, Section 2, Clause 2 which states “[The President] shall have Power, by and with Advice and Consent of the Senate, to….appoint…Judges of the supreme Court”
In the United States, there have been 9 judges operating in the court since 1869.
On February 13th, 2016, Justice Antonin Scalia, a conservative judge, passed away while sitting on the Supreme Court. Within just a few hours, Republican Senator McConnell issued the statement that “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”
This sentiment is similar to current Democratic Nominee for President Joe Biden, who in 1992 as a member in the Senate, argued that “Once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”
On February 23rd, 2016, Senator McConnell announced that the Republican-led Senate would not allow a vote on any Obama nominee. Then, On March 16th, 2016, President Obama nominated Merrick Garland to the Supreme Court as a replacement to the late Justice Scalia anyways, and as promised, Senator McConnell never allowed the Senate to vote on the nominee. If republicans had allowed a vote, it is likely Merrick Garland would have never reached the 60 votes needed to be added to the Supreme Court, even though he was more moderate than liberal.
Given that this Senate Republican-led stalemate forced there to be only eight justices on the day of the 2016 election, it is difficult to believe that their blockage had anything to do with concern over a possible stalemate in the election, which was remarkably close, and more to do with preventing President Obama, voted in by the people, from nominating a third justice in his eight-year tenure, particularly one that would modestly balance the court towards the left. The last time a president appointed more than two justices in the Supreme Court was Ronald Reagan, with four.
After the now-President Donald Trump won the 2016 election, President Trump nominated conservative Neil Gorsuch to the Supreme Court on January 31st, 2017, and he was subsequently confirmed by the Senate on April 17th, 2017. This put the Supreme Court back at nine judges after 14 straight months at eight.
This appointment was different from others. Democrats, who were understandably disappointed by the Republicans actions over a year prior, attempted to filibuster Neil Gorsuch’s nomination. A filibuster is when one or more Senators try to delay a vote by extending debate as long as possible, until either they stop, or the Senate votes by three-fifths (60 votes) to end the debate.
In response to the filibuster attempt, the Republican Majority Senate invoked something called the “Nuclear Option”, which eliminated the need for 60 votes permanently to vote in a Supreme Court Justice (a tactic used by Democrats in 2013 to allow simple majority votes to appoint circuit federal judges), and Judge Neil Gorsuch was voted in by a count of 54 to 45.
All of this brings us to today. Supreme Court Justice Ruth Bader Ginsburg’s seat, now empty, has unleashed a torrent of activity in the Senate. Within literal hours of her passing, Senate Majority Leader Mitch McConnell stated that “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
The next day, on September 19th, President Trump announced he would nominate somebody, which would be a woman, to fill the seat. President Trump is set to announce his official Nominee on Saturday, September 26th.
Democrats have come out and labeled Senator Mitch McConnell as a hypocrite, amongst an entire host of other Republicans who are being chastised for seemingly going back on their word. There are many examples of this, with the most prominent being Senator Lindsey Graham saying in 2016 before the election that “I want you to use my words against me. If there’s a Republican President in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination”
He wrote this statement to make it clear that the precedent the Senate Republicans were making at the time with Merrick Garland would become the new rule.
However, this week, Senator Graham tweeted “I will support President [Donald Trump] in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.”
Noticeably, recently elected Republican Senators, such as Mitt Romney of Utah, and Rick Scott of Florida, also supports a vote for a Trump nominee, with Senator Romney saying on September 22nd that:
“My decision regarding a Supreme Court Nomination is not the result of a subjective test of “fairness” which, like beauty, is in the eye of the beholder. It is based on the immutable fairness of following the law which in this case is the Constitution and precedent. The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own. The Constitution gives the President the power to nominate and the senate the authority to provide advice and consent on Supreme Court nominees. Accordingly, I intend to follow the constitution and precedent in considering the President’s nominee. If the nominee reaches the Senate floor, I intend to vote based upon their qualifications.”
Obviously, Senator Romney could still vote against any Trump nominee. The curious part of this entire situation, is that both sides, the Democrats, and the Republicans, are completely correct in their arguments. The Democrats absolutely have reason to be fired up over the blatant hypocrisy by Senate Republicans. And yes, this is hypocrisy, regardless of the Senate’s Republican majority self-justifying their calling to speak on behalf of the American public by delaying a nominee when in-fact President Obama was also elected by a large margin by the American public. Some Republicans claim that the Democrats would do the exact same thing if they had the chance. Which is odd, since Senate Democrats did not invoke the Nuclear Option on Supreme Court Nominations, nor did they hold a majority during any of this precedent making. At the same time, the Constitution is abundantly clear that the President can nominate, and the Senate is the body that confirms.
Mitt Romney’s opinion is not hypocritical, it is, quite literally, constitutional. He was not responsible, in any way, for the words or actions of Senate Republicans in 2016. The same goes for a host of other Senate Republicans. Two Republican Senators, Susan Collins of Maine and Lisa Murkowski of Alaska, have both confirmed they will not vote on a Trump nominee. But even then, that leaves Republicans with still a simple majority of 52 votes, which is all they need to push through a Trump nominee. Even in a deadlock with only 50 votes, Vice President Mike Pence would be the tie-breaker, just like in Justice Brett Kavanaghs floor vote in 2018.
Additionally, nowhere in the Constitution does it say that Republicans or Democrats must follow any unwritten rules or precedents in following the words within. Just because some Republicans said things in 2016, that are blatantly hypocritical given their current stance, does not mean they are not following the Constitution as it is written today. With a Presidential election less than 6 weeks away, and an election which could have delayed results and likely Supreme Court intervention, we have to ask ourselves if it is worth pushing through a Supreme Court Justice in record time, without a supermajority, tipping the court to a solid conservative majority.
The President should know that just doing this will only further exasperate the divide between Americans, with his most ardent supporters being even more supportive, and his greatest critics sounding bigger horns. I truly doubt that President Trump rushing in a Supreme Court justice will benefit him in any way with his election odds. However, if he loses, but gets in a new Justice, conservatives will enjoy a conservative leaning court, the likes of which we have not seen in decades, which may likely stay in place for more decades to come. This, solely, will be President Trump’s defining legacy amongst conservatives. This is because even if Trump loses to Biden, his most loyal supporters will know that no matter what a President Biden does, that they have a solid check in one of the three branches for an entire generation.
Given Joe Biden’s rather clear deference on if he would ever pack the Supreme Court (adding more justices to balance ideologies), the Supreme Court will likely stay at 9 justices for a long time. Biden recently said “We need to de-escalate, not escalate. That’s why I appeal to those few Senate Republicans, the handful who really will decide what happens. Please, follow your conscience. Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created. Don’t go there.” Perhaps Biden is avoiding the topic so that he cannot give more fuel to Republicans to attack him.
President Trump has every right to nominate a Supreme Court Justice to fill a vacancy. If he is wise, he would wait until after the election to send the nominee, whoever it is, to the Senate for a vote if he wins the election. The name of his nominee itself will be enough to rally as many of his supporters to vote as possible, particularly in the swing states, which could determine the election, again. If Biden wins, he should be able to pick his own nominee to fill the empty seat. He would also be wise to also lead the senate into reversing a ridiculous policy, and put back the required number of votes for a Supreme Court Justice to 60 again.
It is likely that even more Americans will lose their trust in the Supreme Courts objectiveness if a new Justice is pushed through, and their faith in their leaders working together, rather than against each other to score quick political points, will falter. If Trump and the Republicans rush through appointing a new Justice before the election, the American people don’t win anything.
- Tyler, The National Watch