Should the U.S. Senate act before the election on President Trump’s soon-to-arrive nomination of a new Supreme Court justice? Or should Senate Majority Leader Mitch McConnell put off such a vote until after the election, or even until after the inauguration (assuming Trump’s defeat)?
Some people think the latter is the right thing to do, including at least two of McConnell’s fellow Republican senators, Lisa Murkowski and Susan Collins. Murkowski was on record even before Justice Ruth Bader Ginsburg passed away, and Collins released this statement on the day after Ginsburg’s death:
In order for the American people to have faith in their elected officials, we must act fairly and consistently—no matter which political party is in power. President Trump has the constitutional authority to make a nomination to fill the Supreme Court vacancy, and I would have no objection to the Senate Judiciary Committee’s beginning the process of reviewing his nominee’s credentials.
Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election. In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.
In case the final fillip of Collins’s statement went past you, what she is proposing is this: that the Senate receive and consider a Trump nomination to fill the Supreme Court seat, presumably even holding hearings, but with no vote being held before Election Day. If Trump wins, a confirmation vote can be scheduled at any time afterward. But if he loses, his nomination should be tabled by the Senate, permitted to expire with the adjournment of the current Congress, and the new Senate in January would await the nomination sent by President Biden.
Over at The Bulwark, my friend Adam White makes the same recommendation, justifying it as the only way the temperature of our constitutional politics can be brought down. He argues, among other things, that it would be “profoundly unfair to the nominee” to have a vote before the election, because of its effect on the court’s “perceived legitimacy”—a matter to which I will return.
But the beginning of all unsound reasoning on this subject—even here at The Dispatch—is the claim that Sen. McConnell is being hypocritical in moving on this nomination, given what he said and did four years ago when Justice Scalia died. On the same day the country learned of Scalia’s death, McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
Even that very day, of course, no one thought he’d have said this if there had been a Republican in the White House. And not long afterward, he clarified the principle on which he and the majority were proceeding: “It’s been more than 80 years since a Supreme Court vacancy arose and was filled in a presidential election year—and that was when the Senate Majority and the President were from the same political party. Since we have divided government today, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances.”
It was clear from the start, in other words, that McConnell was not stating a constitutional principle of any kind, or even a neutral principle of politics—that in a presidential election year the Senate should always refuse to act on a Supreme Court nomination. He was stating a partisan principle—that the party that opposes the current president, if it controls the Senate in a presidential election season, is entitled to disregard his nomination until the voters decide who shall serve the next presidential term. (And if you think the phrase “partisan principle” is an oxymoron, take it up with Edmund Burke, who first made the case two and a half centuries ago for principled partisanship.)
So the “McConnell is a hypocrite” line has traction only if we willfully forget what he actually said in February 2016. Now, when partisan circumstances are not as they were then, and the governing principle should be different, let’s think about what is the right thing to do.
Consider what Sen. Collins and Adam White recommend. The president will nominate someone this week. Unlike Judge Merrick Garland, who knew in advance that no action on his nomination by President Obama could be expected, this person will prepare for the confirmation ordeal. She (it’s all but certain to be a woman) will fill out the standard questionnaire for the Senate Judiciary Committee, make the rounds of talking with senators, and then appear before the committee for the usual lovefest with the senators who hope variously to advance or to doom her nomination.
How would it be fair to this nominee, or fair to the process of deciding the merits of a nomination already under consideration, to delay a vote only for the purpose of tabling it—permanently consigning her nomination to limbo—should the president who made it be defeated in the election? That is more than the Senate should ask of a nominee whose name has been put forward in good faith, and who has already subjected herself to the grueling process we employ in these cases. What is in fact unprecedented is a Senate refusal to proceed to a vote on a nominee who has been through the mill of modern confirmation hearings and has not withdrawn for ethical reasons. This the Senate has never done.
White thinks this price should be paid by President Trump’s nominee, apparently for two reasons. First, he argues that confirming a justice would be “profoundly unfair to the nominee,” because senators should “do everything possible to protect the justices’ perceived legitimacy.” I confess I have trouble grasping the train of thought that says the sacrifice of a meritorious nominee for the sake of a political outreach to the opposite party contributes anything to the “legitimacy”—even the “perceived legitimacy”—of the justices’ future decisions on the bench. Particularly when the outreach has a doubtful chance of success.
The “judicial legitimacy” question is very important to academics and pundits, but is something of a will o’ the wisp conceptually. The Clarence Thomas hearings of 1991 were supposed to permanently damage Justice Thomas’s “legitimacy” as a jurist. The same was said of Justice Kavanaugh after his bruising hearings in 2018. Or take the Bush v. Gore ruling in 2000; that was supposed to deal a heavy blow to the court’s “legitimacy.” I could fit everyone still obsessing over that case today into a phone booth, and they’re all law professors or liberal pundits.
The total absence of such concerns in most people’s minds, virtually from the day after each event, suggests that the “legitimacy” of the court and its members suffers no lasting harms from these periodic cataclysms. What secures the court’s legitimacy in the public mind is the quality of its work as the public understands it, and nothing else. (What the public understands would be the subject of another article entirely.)
White’s second reason to treat President Trump’s nominee unjustly is that he imagines a grand bargain can be struck in which the Democrats promise not to “pack” the court when they next have the power to do so. Of course, if Trump is re-elected—an outcome more likely with a vote delayed until after the election rather than taken before it, I think—then the Democrats have no incentive to keep the bargain after his nominee’s confirmation. They must simply wait longer for the opportunity to strike.
But suppose a justice is confirmed before Election Day, and the Democrats then win both the presidency and the Senate. Will the hard left succeed in “packing” the Supreme Court, as White fears? It’s not so easy. Adding justices to the Supreme Court takes the passage of legislation to create new seats. While the filibuster is dead for the consideration of judicial nominations, it is still in place for legislation—and the GOP is probably going to have at least the 41 senators it needs to use the filibuster next year.
So a Democratic Senate would first have to kill off the filibuster for all regular legislative business—forever—in order then to pass legislation expanding the Supreme Court. That’s one radical step into the mire of institutional damage in order to achieve another. All in response to the Republicans doing in 2020 what the Democrats wanted to do in 2016, under traditional norms of Senate business. And just in order to affirm the public’s suspicions that the Democratic Party sees the Supreme Court as only another political branch of government.
I think the Democrats, not least in a Biden White House looking ahead to the 2022 midterm elections, would lose their nerve for taking two such nakedly radical steps as these. Even Franklin Roosevelt, fresh from a landslide re-election in 1936, was savvy enough to dissemble about what his “reorganization of the judiciary” was all about in 1937, calling for more justices to aid a bench of aging jurists. Today’s Democrats have forsworn that fig leaf, and they won’t enjoy walking around with their real intentions exposed to view.
No, Mitch McConnell has it exactly right. The Republicans should do the country’s business, considering President Trump’s nomination and voting up or down on confirmation, on the one criterion that matters: the merits. And the sooner the better.
Matthew J. Franck is associate director of the James Madison Program, and lecturer in politics, at Princeton University.
Photograph by Stefani Reynolds/Getty Images.