Analysis: The Constitution, Relevant History, and Electoral Outcomes All Favor Confirming a New SCOTUS Nominee

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Posted: Sep 21, 2020 10:15 AM
Analysis: The Constitution, Relevant History, and Electoral Outcomes All Favor Confirming a New SCOTUS Nominee

Source: AP Photo/J. Scott Applewhite

Somehow, it arrived as a shock. Everyone knew it was coming sooner or later, yet the death of an octogenarian who'd battled various forms of cancer for years still felt sudden and seismic. In an instant, a single news alert on a Friday night -- as the summer slipped into autumn -- shifted an already deeply-polarized American political landscape. The Supreme Court's most prominent liberal member, an icon and inspiration to many, had died. And with just weeks to spare before a contested national election, a Republican president was abruptly presented with an opportunity to shift the ideological balance of the Court, perhaps for a generation.

The surreality of the moment was captured in the video footage of President Trump learning of Justice Ruth Bader Ginsburg's death from a reporter, in real-time. With Elton John's "Tiny Dancer" playing loudly in the background, the weight of the news hit the president all at once. His face evinced astonishment, and after casting about for the right words for a moment, he physically reset himself and launched into a brief, extemporaneous tribute to the late justice. He concluded his brief remarks by expressing sadness, then walked away. Later that evening, he phoned Senate Majority Leader Mitch McConnell to discuss a handful of his frontrunners to fill the vacancy. The next day, he made his political intentions clear, in no uncertain terms:


McConnell had already weighed in, pledging a Senate floor vote for a nominee. What will happen next? What should happen next? Let's begin with the constitutional authority at play, which is quite straightforward: The president shall nominate a would-be justice, subject to the "advice and consent" of the United States Senate. Four years ago, a Democratic president did exactly this when Justice Scalia passed away in a presidential election year, seeking to dramatically alter the high court's ideological composition. Congress' upper chamber was controlled by the opposite party, which chose not to consider the nomination -- which brings us to the relevant history:

History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.

In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties...The norm in these cases strongly favored holding the seat open for the conflict between the two branches to be resolved by the presidential election. That is what Republicans did in 2016...what does history say about this situation, where a president is in his last year in office, his party controls the Senate, and the branches are not in conflict? Once again, historical practice and tradition provides a clear and definitive answer: In the absence of divided government, election-year nominees get confirmed.

"When the same party controls the White House and the Senate (e.g., now), the [presidential election year] confirmation process proceeds as usual and the nominee is almost always confirmed," according to conservative court-watchers. This has been the outcome in 17 out of 19 such cases, to be exact. But what about Senate Republicans' aforementioned decision not to move on President Obama's pick to replace Scalia, who died in early 2016 -- much farther removed from that election? McConnell and company broadly argued that in a presidential election year, the people should be allowed to decide who would replace the conservative giant on the Court. Under that standard, there should be no Senate action on whomever Trump selects in this case, prior to the election. But the "McConnell Rule" was actually stated quite carefully by the Kentuckian. Very early in the process, he immediately, repeatedly, and cagily left himself wiggle room by drawing a distinction between a presidential election year SCOTUS vacancy that arises during divided government, versus the current scenario, under which the same party controls both the presidency and Senate. That distinction will be willfully ignored or lied about by some, who want to rap McConnell for rank hypocrisy, while others will dismiss it as hair-splitting. But his words and the facts matter.  Indeed, under split partisan control, by far the likeliest historical outcome was the one that befell Merrick Garland in 2016.

It must be noted that other Republican senators left themselves wide open to charges of situational "principles" and breathtaking flip-flops, including the sitting Senate Judiciary Chairman (here's his explanation). Yet for every clip of a GOP member making an impassioned argument that aligned with their partisan interests four years ago, there's a mirror-image clip or statement from a Democrat making precisely the opposite case. "We need nine" is about to make a prominent comeback. The Senate will be knee-deep in hypocrisy on this one. Another participant in the competing talking point olympics is current Democratic presidential nominee Joe Biden. Biden, along with current Senate Minority Leader Chuck Schumer, has helpfully been on both sides of this issue at various points, based on the politics of the moment.

The Biden-Schumer standard articulated when Republicans were in the Oval Office helped buttress GOP arguments four years ago, but just like there seems to be a Trump tweet for every occasion, the same feels true of Joe Biden quotes. When you've been a partisan combatant in DC for decades, you tend to stake out lots of positions, as power ebbs and flows. To wit, here's Biden telling an important truth about the power dynamics involved, during the waning days of the Obama administration:


In this case, he's talking hypothetically about a divided government tug-of-war. If he would have been willing to push the process forward, even "a few months before a presidential election," with a Republican-selected nominee, it is an absolute ironclad guarantee that he would have enthusiastically done so if it were a Democrat-selected one. It is similarly indisputable, based on all available evidence, that if this exact situation presented itself to Democrats, they would swiftly and ruthlessly move to fill this vacancy. It's very important to recall that Senate Democrats have chosen escalatory, raw power plays at every turn in the confirmation wars, dating back decades. It's this rap sheet that led me to endorse McConnell's controversial (but precedented) Garland blockade, as well as to embrace the Reid Rule on filibusters after Democrats once again engaged in an act unprecedented, unilateral bare-knuckled partisanship on this front. The record could not be clearer.

In a different world, Senate Republicans may not have held together back in 2016, but Democrats' long history of shameless power grabs set the stage for that decision. In a different world, "Bork" would not be a verb, Miguel Estrada would be a distinguished and long-tenured federal jurist, and Brett Kavanaugh would not be associated with an absolutely disgraceful confirmation circus. But that is not the world Senate Democrats have created through their hardcore ends-oriented choices and actions, over and over again. So in this world, based on everything we've learned in recent years, and based on the longer-term history rehearsed above, the Senate Republican majority -- expanded by voters in the most recent election, significantly because of judicial battles -- is entirely within its rights to advance the president's forthcoming nominee.

I'll briefly note that while RBG's reportedly fervent wish not to be replaced by this president will certainly be a rallying cry for the Left, that was not her decision to make under our constitutional system. If she was committed to departing the Court with some reasonable guarantee that her successor would hew to her general judicial philosophy, she could have retired during the previous administration. She decided not to. And on Friday, she passed away while the GOP is in charge of both levers of government that control this scenario. Nevertheless, in light of the 2016 battle, the toxicity of the Kavanaugh mess, some Republican senators aren't inclined to play Democrat-style hardball at this stage of the electoral cycle. Alaska's Lisa Murkowski, who ended up opposing Kavanaugh, is out. Susan Collins, who bravely supported him, is also out. Others are undecided, with this interesting twist that could matter significantly in terms of timing. That leaves McConnell at 51 votes. He could afford to lose just one more member of this conference and still preserve the ability to eke out a confirmation, assuming all Democrats vote against the nominee -- which is a pretty safe bet, even for Joe Manchin.

In fact, I expect the political equivalent of thermonuclear war from Democrats, whose Kavanaugh conduct was as outrageous as anything I've ever seen in Washington. And that was in a fight over replacing a right-leaning justice, in which they had zero procedural objections to latch onto. So what is likely to shake out? I think this succinct lay of the land is more or less correct:


There will be a nominee, likely announced shortly before the first presidential debate on September 29th, if not sooner.  Senate Republicans will likely go through the early stages of the confirmation process, perhaps setting up hearings. But for a number of reasons, there is internal debate over whether to attempt a floor vote before the election -- although I think expediting the process and holding a pre-election vote would be entirely acceptable, and quite possibly preferable. The Left, which is already whipped into a fevered lather, is exceptionally motivated for this election. SCOTUS is a potent motivator for conservative voters, so both the Trump campaign and Senate Republican campaigns have some incentive to maintain this as an active campaign issue through early November. As an aside, do you think Republicans would rather fight on this turf, or over Coronavirus, week after week? In any case, I think this is roughly correct, if the final vote is held until post-election: If Trump wins re-election, his nominee will go through. If he loses, but Republicans maintain Senate control, it'll be a big fight during the lame duck session, but confirmation would be very realistic. With gridlock ahead and ample historical precedent on their side, the GOP would probably be inclined to install the outgoing president's nominee on the bench.

But if Republicans lose the presidency and the Senate in November, which is a real possibility, I'm not sure the political will to ram through a nominee, over the clearly-expressed will of the people, would exist -- and I'm not sure it should.  That is the serious risk of waiting.  Yes, lame duck SCOTUS confirmations have occurred in the past, but I think that such an effort by defeated Republicans would further inflame a highly combustible situation. It would harm the republic. And it would increase the likelihood that even the handful of moderate-leaning Democrats in the Senate would be motivated to go along with wild overreach -- like nuking the legislative filibuster, packing the Court, or adding states to the union for political gain (all of which some Democrats were threatening before this vacancy occurred). Between the pandemic, the profound economic strain, the racial tension, and the social unrest, the country feels like it may be nearing a breaking point. A GOP mission to fulfill its constitutional prerogative to confirm a new justice this year will already be extremely controversial, even though it's totally justified. The Democrats, the media and the organized Left will be on the warpath. The GOP should either clear the nomination before election day or roll the dice. A Republican victory in November or a mixed electoral verdict would support a confirmation. An across-the-board Republican defeat probably would, and probably ought to, end the nomination.  Think about the consequences of going 0-for-3,

Finally, there's this, which echoes what I've been hearing from well-placed sources. I'd add that Judge Amul Thapar, a McConnell favorite, was also in the mix. Thapar would have been the first Asian-American nominated to the Supreme Court, which would add a few wrinkles to the optics and dynamics of the situation. But my sources initially said that it's almost certainly going to be a woman, for all the obvious reasons, and Trump himself confirmed that to be the case on Saturday:


Brace yourselves; we are in for one of the most divisive and ugly fights in modern American history. I'll leave you with a short summary of my trifecta of powerful, bottom-line arguments for why the Senate GOP should move to fill this vacancy (notwithstanding my caveat about trying to do so post-election if Democrats sweep):

(1) Constitutional authority on this issue is unambiguous.

(2) History and precedent clearly favor confirmation under these circumstances.

(3) Democracy. The most recent elections to decide control of the two political entities that make this decision (the presidency and Senate) were won by Republicans. Trump was elected president, then Republicans expanded their Senate majority two years later -- thanks to races in which judges and the courts were a central issue. I'd also add that Democrats would almost certainly do this if roles were reversed and they held the levers of power that the GOP currently does.