Last updated on September 28, 2020
Remember, let’s be polite; let’s be respectful, but most of all, let’s be outspoken.
In February 2016, Supreme Court Justice Anthony Scalia died, initiating the process of a Supreme Court Justice confirmation. Using powers granted by Article II of the Constitution, Democratic President Obama nominated Merrick Garland to replace Scalia, during a Senate controlled by the Republicans.
Therefore, when Obama made the formal nomination, the Republican Senate Majority Leader Mitch McConnell declared the nomination null and void. At the time, McConnell and the Republican Senators believed the next Justice should of have been decided by the voters in the 2016 presidential election. On the other hand, practically every single Democratic politician argued to fill the vacant seat. When Trump became President in January 2017, he nominated Neil Gorsuch, who was confirmed by the GOP Senate.
Fast forward four years into the future, the same situation is happening. Justice Ginsburg died at the age of 87 around 40 days before the election, and there is a vacancy on the Supreme Court. As a result, President Trump will announce a nominee for the seat this weekend, who will most likely be a female, pro-life conservative.
In the Senate, practically everyone did a 180-degree turn and rushed to the other side. Republicans say to fill that seat, while Democrats say it is to up to the voters in this election. As always, the politicians abandoned their previously proclaimed principles and rationale for political advancement. This is nothing new.
Looking at the Senate’s history for accepting Supreme Court Justice nominees, there have been 29 instances of where a Supreme Court vacancy occurred during a presidential election year. Of the 44 presidents that served before Trump, 22 presidents have nominated someone during a presidential election year. When 19 of the 29 times a Supreme Court seat opened, the President and the Senate majority were of the same party. Out of those 19 times, the Senate confirmed 19 candidates nominated by a same-party president.
Furthermore, there have been ten situations where the President and the Senate majority did not share the same political party during a SCOTUS Justice confirmation process in a presidential election year. Out of those ten times, the Senate confirmed two candidates nominated by an opposing-party president.
The nation knows this is a partisan issue. If the American voters were critical of the Senate Republican majority’s decision to declare the 2016 Obama nominee void, then they would have voted for a Senate Democratic majority in the 2018 mid-term elections. The nation also knows that if the Democrats controlled the Presidency and Senate majority when Ginsburg died, they would be doing the same thing the Republicans are doing right now. This is all normal, divisive politics.
However, the reason I believe confirming Trump’s nominee will “decimate” this nation is because of the potential response to the nominee.
To preface, I support filling in the vacant seat. The command of the Constitution is explicit in the ability of the President to nominate and for the Senate to confirm a candidate for a Supreme Court Justice. I also found McConnell’s rationale as to why he blocked the 2016 nominee illogical and baseless. It does not matter if the President is in his first, fourth, or eighth year; the Senate should confirm a nominee based on the merits of a candidate and not the political makeup of the President. It also does not matter if it is an election year.
Lastly, the seat should be filled because this election will probably be contested. If Biden were to win, Trump will challenge the results of the election and vice-versa. When a challenge is made, it will be up to the Supreme Court to decide the winner of a contested election, like when they did in the 2000 election between Bush and Gore. According to the Associated Press, if there are only eight judges on the Supreme Court, a 4-4 vote split may occur, which would be handed to the lower courts to decide. Thus, complicating the election even further.
Texas Senator Ted Cruz, who is on the short-list of potential nominees for Supreme Court Justice, said, “We cannot have Election Day come and go with a four-four court. A four-four court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election.”
If nine justices presided during the election results, the nation may see a 5-4 vote in favor of a candidate, which would smooth out a highly contested election.
If the Republicans nominate and confirm a Justice, I fear the backlash from the Democrats. An idea that is being entertained by Democratic politicians is court-packing. This is the process of adding new Justices to the Supreme Court to dilute the power of the already established nine Justices. Democratic Representative Joe Kennedy III endorsed the idea over Twitter.
According to the Washington Post, Democratic Senate Minority Leader Chuck Schumer said, “Nothing is off the table,” and Democratic Senator Elizabeth Warren said expanding the court was a “conversation worth having.”
Hypothetically, if Joe Biden were to win the election and the Senate became Democratic, then they would have the votes and authority to add new Justices to the Supreme Court. While this may work in the short term, when Republicans re-enter power, they may do the same thing.
Thus, minimalizing the importance of the Supreme Court and making it increasingly a partisan game for power.
This problem stems from the underlying notion that the Supreme Court is a weapon for legislation when it is not. The Supreme Court is there to interpret laws in respect to the Constitution; it is supposed to be a check on the power of the other two branches in terms of implementing constitutional laws. While impartiality in Supreme Court Justices is almost unachievable, the nation should reaffirm the role of the Supreme Court Justices as interpreters of the Constitution.
The Supreme Court provides judicial review and recognizes the limits of its power. They are the final arbiter of the law and determine the constitutionality of a law. They are not there for political activism or advancing political narratives. They are not there to provide a second vote in confirming legislation, and they are especially not there to be pawns in a political chess game.
Again, it is all divisive politics, but at to what point do these political actions break past the tipping point, the threshold of democracy’s survival? As the nation enters a contentious and rigorous process of confirming a Supreme Court Justice, we must reevaluate the true objective of jurisprudence and the Supreme Court.
Remember, let’s be polite; let’s be respectful, but most of all, let’s be outspoken.
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