Justice Ruth Bader Ginsburg’s death, like Justice Antonin Scalia’s death four-and-a-half years ago, will have profound effects on the fall general election, as well as the shape of constitutional law in the decades to come.
While a move by the Republican Senate to confirm a potential Trump nominee would be well in line with historical precedent, there are good reasons — practical, political, and constitutional — for the Senate to forbear.
We will hear a lot over the next few days and weeks about a “Biden rule,” a “Thurmond rule,” and the Senate’s 2016 treatment of Judge Merrick Garland. All of this talk is a distraction at best and historical bunk at worst.
The lesson from history is clear: The Senate fills Supreme Court vacancies during an election year if the same party as the president controls it. The Senate doesn’t confirm a nominee if the opposition party controls it, unless it’s for the chief justiceship or the president nominates someone associated with the Senate majority’s party. Neither of these exceptions applied to the Garland situation. Only those two precedents apply. You can ignore everything else.
And yet, while precedent points overwhelmingly one way, it does not mean that anyone, let alone the Senate, must follow it. Just ask the Supreme Court.
There are eight reasons why it’s politically incumbent on the Senate to delay a vote on the nominee — that’s the number of Republicans running in tough re-election races around the country. An open Supreme Court seat allows senators like Maine’s Susan Collins to say, “I’ll vote for any objectively qualified nominee put forward by the winner of the 2020 Electoral College vote.”
A statement like this plausibly tacks the incumbents to the center, winning pivotal votes. It puts their opponents in the unenviable, for a Democrat, position of needing to pledge to support a possible Trump nominee in 2021, lest they appear overly partisan to swing voters in their states.
This gambit works not only for the eight incumbent senators, but also for challengers in the few states, most notably Michigan, where the GOP has a shot.
The pivotal eight also risk dooming their chances in the fall if they follow the party line; this would destroy the GOP majority in the Senate.
And the vote probably would fail anyway: Alaska’s Lisa Murkowski, Utah’s Mitt Romney, and any two of the eight threatened incumbents could combine to defeat a cloture vote on the nomination.
From the president’s perspective, he can send a nominee, most likely a 40- to 55-year-old female circuit court judge, formally to the Senate. But the president shouldn’t exert any real pressure on the Senate to move the process along. Rhetorical pressure makes sense to rally base voters, but demanding a result the Senate won’t deliver makes the president look weak and ineffective. The Senate has confirmed his judicial nominees at an impressive pace, but this time there is little doubt that it would stymie him on the most important one of his term. There is no chance a cloture motion succeeds.
Sending the nominee to the Senate, but not trying to strong arm it, makes Trump look shrewdly decisive. He would not put the nominee and threatened senators through the grueling process with no chance for victory before the election. It also amps up the pressure on Biden to release at least a list of potential nominees or worse, puts him in a box where he has to name one.
Then there’s the matter of what RBG’s eventual replacement will do: expound the Constitution. Americans got a unique chance to shape the direction of the court in 2016, and they chose to keep it on the same path by electing a Republican to replace a right-leaning justice, and later, another. It is nothing short of amazing that Americans will again get a chance directly to weigh in on the path the court takes with their votes for president and senator in November 2020.
Despite the chief justice’s protestations to the contrary, we can and do think of judges politically. But, it’s a different kind of politics. The parties have different visions of what the Constitution means and how best to interpret it. That’s good. Americans can make clear choices with their vote in this election on the fundamental questions that define higher law in the country. Every lawyer, judge, and justice should applaud this opportunity.
RBG’s death presents the country with its second opportunity in four years to alter or stay its constitutional course. It is in the political interests of the people who have power now to leave the choice to the American people. People in my position often belittle the Framer’s genius these days, but the system they implemented too often returns the results they intended: We the People get the last say.
