As if a pandemic, economic crisis, social unrest, and political polarization didn’t make our upcoming election fraught enough, we’re adding to that mix what is universally anticipated to be one of the most intense Supreme Court confirmation battles the country has ever seen.
The opening skirmishes of this battle have, of all things, focused on the Senate calendar, precedent, and practice. There is no question that a Supreme Court confirmation process conducted in the heat of a presidential contest presents unusual circumstances. The Senate traditionally slows the pace of judicial confirmations in election years and, historically, confirms few nominees after the August recess. Supreme Court vacancies occur rarely enough that the data set practically invites “p-hacking”—the conjuring of a “rule” that conveniently both fits the data and supports a desired outcome.
In truth, when a Supreme Court vacancy occurs, the president has the power to nominate, and the Senate to confirm, a new justice. A case can be made that prudent, enlightened leaders would not seek to fill the vacancy during an election season, especially in divisive times like ours. Whatever the case, we do not live in an age—or enjoy a politics—marked by prudence.
President Trump won the election, in large part, thanks to his commitment to appoint judicial conservatives, originalists, and textualists to the bench. The Republican Senate majority campaigned on the pledge to support such nominees. Republican voters expect both to deliver. Whatever the prudential arguments, one could hardly expect that elected Republicans would defy the expectations of their voters and flinch from filling a crucial Supreme Court vacancy when the opportunity arose and time remained to do so. For many, the searing experience of the Kavanaugh confirmation hearings drew home a lesson that the left knows no limits in the judicial confirmation fights and, therefore, a decision to defer filling a vacancy out of courtesy to the other side would amount to something between dereliction and madness.