Understandably, the passing of “Notorius RBG” ( Supreme Court Justice Ruth Bader Ginsburg) dominated the news over the weekend, as Fox noted. There have been tributes, written long ago, as Ginsburg’s demise has been considered imminent for many years. But of course, the real discussion in the media has been about Trump’s intention to “pack” the Court immediately, just minutes after learning of Ginsburg’s passing, according to Fox.
The issue has been made more critical because the presidential election will likely require rulings on the legitimacy of the outcome. Currently, we have five conservative justices and only three liberal justices. That should be more than enough to give Trump an edge in any dispute. However, Chief Justice John Roberts has been working to try to portray the Supreme Court as “above politics.”
That being the case, Roberts may want to air out the rancid smell of politics. He may even want to vote with the liberals, as he has recently to show that he’s not a political hack. That would leave us with a deadlock—4 vs. 4.
COUNTING THE VOTES
There’s no question that McConnell will have the votes he needs in the Senate to do anything he pleases. It is true that Maine’s Republican Senator Susan Collins has said that it is too close to the presidential election to allow Trump to pick a new Justice, especially considering that his poll numbers are so low. Collins is in the battle of her life for re-election, primarily because she voted to put Bret Kavanaugh on the Bench in 2018. That did not go over well in her liberal State of Maine. She would like to appear “independent” of Trump as she fights for her political future. After the one-two punches against impeachment and for Kavanaugh have left her as one of the most endangered Senators this year.
Then there’s Lisa Murkowski, of Alaska. As the antidote to Sarah Palin, Murkowski has savored her independent stance, even though her state is solidly Republican. She has also suggested that she would not want to be part of a rush to seat anyone. And that leaves Mitt Romney, who just loves to give Trump a hard time (the feeling is certainly mutual).
If all three Senators were to vote with the Democrats, we’d still have a 50-50 tie, which would allow Vice President Mike Pence, as “President of the Senate,” to cast the tie-breaker. At least one other Republican would have to be convinced to at least abstain. But that would be a bold step. Trump would certainly find ways to punish them.
However, there are three GOP Senators who may be beyond Trump’s punishing arm. Three are retiring: Lamar Alexander (Tennessee), Mike Enzi (Wyoming), and Pat Roberts (Kansas). Of the three, Alexander is the most independent, such as when he came out against giving tax dollars to for-profit schools. Alexander has nothing to lose, but so far, he doesn’t seem to be interested in making a mark on history.
OBAMA GAVE IN
The issue brings us back to 2016. With almost a full year left of his second term, Obama assumed that he would be able to put Merrick Garland on the Court. Until relatively recently, the process would have gone through with little or no controversy. It’s the Constitutional job of the Senate to “Advise” (give an opinion) and “Consent” (agree to) a president’s right to fill a Supreme Court vacancy.
But Senate leader Mitch McConnell refused to even hold interviews with Garland. That is not “advising” and certainly not “consenting.” And therein lies a major problem with our system of government. A president, or Congress, may do anything they please, whether Constitutional or not. History is littered with examples of illegal actions, but if they are not challenged in court, they are accepted. Sometimes, an out-of-power party will allow an illegal action, figuring they can benefit from the precedent when they gain power. Other times, the illegal actions fly so fast and furiously that there is no way to keep up. “Constitution be damned.”
RATIONALE OR RATIONALIZATION?
McConnell made the mistake of trying to color the power grab as something ethical. He claimed that in the entire last year of a president’s term, the Senate should refuse to vote on—or even interview—a Supreme Court candidate. He said, “let the people decide,” with the idea that with one-fourth of a term left, a president shouldn’t be allowed to make the nomination.
February 13, 2016: “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement released after Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.”. . .
February 23, 2016: “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”. . .
August 6, 2016: “One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy,’”
That high-sounding reasoning is betrayed by McConnell’s current insistence that if he gets a chance, a vote will happen as soon as possible, presumably with or even without hearings.
McConnell is now trying to thread the needle, claiming that the difference this year is that there’s a Republican president and a Republican Senate, and somehow, that should make a difference. There is no logic in the argument, except to say that he has the power to do so. It’s a case of “might makes right,” and while politicians, as politicians, are allergic to stating a fact without spin, it’s the case.
HE COULD HAVE BLAMED THE SENATE
If McConnell had had the foresight, he would have realized that the situation was likely to repeat itself, somewhere along the line. Instead of saying that Obama didn’t have the “right” to have a fair hearing for his nominee, he would have blamed himself—saying that it would be unfair for a Senate to make such a momentous decision so close to an election when one-third of the members might be new. That would have looked more like a philosophical point, rather than a crude power grab.
As it is, Democrats have no power. They are talking about some amorphous, distant retribution, which is just making the atmosphere more poisonous. Retribution is never a thing to go to as a first defense. More importantly, it has no weight. The American people have a short attention span. They are not going to like a later response to an immediate problem. Democrats will see it as too little too late, Republicans will see it as laughable, independents will see it as childish and counterproductive.
TALK OF “PACKING” THE COURT
Some Democrats have warned that if Democrats take over the government next year, they could “pack” the Court, by adding seats and pushing through entirely new Justices. But if history is any guide, it would be a disastrous effort. Arguably the most popular president of all time, FDR, split his support by trying to do so in 1937.
It is, of course, as the current Republican push to jump “one of theirs” onto the court, perfectly legal, since the Constitution does not say how many Justices should sit on the Court, and we have had a different number at different times. Democrats could point to history. There have not always been nine Justices.
The U.S. Constitution established the Supreme Court but left it to Congress to decide how many justices should make up the court. The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since.
Democrats could also say that the uninterrupted Republican control of the Court for fifty years is corrosive to the system, if they wanted to find a philosophical justification.
DEMOCRATS COULD SHUT DOWN THE GOVERNMENT
But again, Americans have a short attention span. Only immediate responses matter. Democrats should look for ways to disrupt the system now, not later. An obvious way would be to shut down the government. While Democrats and Republicans have agreed to a compromise to keep the government running after September 30, they have not voted on it. Democrats could say that the system is not operating fairly, so it should shut down until Republicans agree to follow their own premise from 2016.
The benefit of that would be payback. The GOP perpetrated a shocking abuse of the system in 2016. Obama didn’t fight it at the time, because everyone, including Trump, expected Hillary to win. Obama simply gave up an opportunity to stand up for an ideal. But if the Senate refused to consider a Trump nominee at this time, both sides could say that the wrong was righted, and that festering wound might be healed.
OR A RECESS APPOINTMENT COMPROMISE
There is another suggestion to resolve the current squabble. That is, to allow a “recess appointment,” which would give Republicans the advantage of a solid majority for several months, including any legal disputes that might come up regarding the presidential election. And, of course, if Trump were to win, he could make the nomination permanent.
There is a solution to the impasse in the form of a recess appointment to the Supreme Court that would remain in place until the beginning of the next session of the Senate in January. This is authorized by Article II, Section 2, Clause 3 of the Constitution, which reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”. . .
There is abundant precedent for such a presidential move. In 1953, President Eisenhower appointed Earl Warren as Chief Justice of the Supreme Court in a recess appointment in October of that year following the death of Chief Justice Fred Vinson in September. He waited until the new year to submit that appointment to the Senate, leading to Warren’s confirmation in March of 1954. A clearer precedent occurred in 1956 when Justice Sherman Minton resigned in October, in the midst of Eisenhower’s re-election campaign. He chose to elevate William Brennan to the Court in a recess appointment that took effect on October 15 of that year.
There are many options for where we go from here. But more likely than not, conservatives will dominate the Court for the next couple of generations, even more powerfully than they have dominated the Court for the past 50 years.