The death of Supreme Court Justice Ruth Bader Ginsburg on September 18 has shaken the judiciary at a moment that could test the foundations of American legislature. Justice Ginsburg was a leftist — or “liberal,” in American parlance — mainstay in her 27 years on the court and four decades on the federal bench.
The ferocity of nomination battles has intensified in recent years. After Justice Antony Scalia’s death in 2016, President Barack Obama nominated moderate DC Circuit chief judge, Merrick Garland, to the Supreme Court on March 16, more than seven months before the next presidential election. Senate Republicans used their majority to block the nomination, denying a vote and letting the nomination expire on January 3, 2017, shortly before Donald Trump’s inauguration. Senate Majority Leader Mitch McConnell then argued that “The American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.”
A primary argument McConnell and his colleagues made was for awaiting the election to renew the presidential mandate because Americans deserved a say this close to election day. Democrats responded that the Constitution and traditional practice grant that power and that America already voted in 2012 for a mandate of four, not three and a half years — to no avail.
This recent political precedent will meet its first test over the next two months. Democrats remain the minority party in the upper house, leaving the path clear for Republicans, who unanimously supported President Trump’s nominations of Neil Gorsuch, with 51 Republicans and three Democrats voting to confirm, and Brett Kavanaugh, with 49 Republicans and one Democrat confirming. Whomever President Trump nominates will likely enjoy similar partisan support. The conservative majority of five on the court could now grow to a commanding six out of nine and will influence American society for decades to come.
The vote count leaves the words of Senate Minority Leader Chuck Schumer, tweeting just hours after the announcement of Justice Ginsburg’s passing, moot: “The American people should have a voice in the selection of the next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Schumer’s decision to invoke the Garland precedent is far from obvious. Both party leaders have switched their rhetoric as their positions are reversed. Democrats blame Republicans, and Republicans cry hypocrisy.
This runs against observations by political scientists showing that fighting fire with fire weakens democracy. Gone are the days when a president with a governing majority would nominate a justice from the other party, as Harry Truman did in 1945. Trust and bipartisanship have reached a low not seen in decades.
Presidential nominees have required a simple majority since 2013, when Democrats for the first time changed chamber rules to allow federal lower court nominations to pass with a simple majority rather than a 60-vote supermajority, over the protests of Republicans. In April 2018, Republicans, now in the majority, expanded the rule to include Supreme Court nominees, making 51 votes sufficient to overcome Democrats still furious over the Garland affair. As both parties raise the stakes, the high court grows more politicized — and voters and the politicians they elect grow more polarized — the future of the political branches of government hangs in the balance.
Regardless of who replaces Justice Ginsburg, SCOTUS seats will again inevitably open up the floor to opposing parties. Vociferous opposition to Neil Gorsuch and Brett Kavanaugh in 2018 suggests there may be appetite for a bitter battle, however quixotic. Whoever wins the November presidential contest will enter an embittered political environment where the comity and willingness to compromise that characterized Washington a generation ago has all but disappeared, replaced by weakened institutions and disunity in the halls of power.
While more active state and local governments, administrative agencies and even courts address questions unanswered by Congress and the White House, nothing can replace efficacy in DC. When paralysis reigns, policies and the people they serve suffer.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.