The death of Supreme Court Justice Ruth Bader Ginsberg, a liberal icon, has created an opportunity for U.S. President Donald Trump to add another Justice to the nation’s highest court.
Trump nominated Amy Coney Barett, a staunchly conservative legal scholar, and an appellate court judge. If confirmed, she’ll be the third Justice appointed by Donald Trump, an impressive number in less than 4 years considering both Barack Obama and George W. Bush just added two justices each in their 8-year terms.
The Senate is currently controlled by the Republican party, which holds a 53 majority in the chamber. They have pledged to confirm Ms. Barett to the Supreme Court, all but guaranteeing her seat on the bench.
But should the Senate Republicans confirm a new justice less than a month before the election? In normal circumstances, yes. But this is no ordinary time. And her confirmation could have serious consequences to the nation’s highest court.
First, there is nothing in the law that prohibits the Senate Republicans from confirming a justice just because it’s close to an election. The real question whether they should do it.
In order to solve this question, we need to go back to 2016, when Justice Antonin Scalia suddenly passed away. Scalia was a highly respected conservative justice in the Republican party. And his passing immediately prompted panic within the conservative movement.
Republican senators including Senate Majority Leader Mitch McConnell and Senator Lindsey Graham, now the Chairman of the Senate Judiciary Committee, pledged to block then-President Obama’s nominee. Their reasoning was that because it was an election year, they should wait until after the election to give the voters a voice in judicial nomination.
Now, the Senate Republicans are walking back their words and ignoring the call of hypocrisy. If, however, the Senate Republicans are not afraid of being called hypocrites, and that seems to be the case, then why shouldn’t they confirm Ms. Barett? After all, they are not breaking any law, just their words.
The Judiciary branch is a somewhat unique branch of the government in that, it does not have the mandate of the people. President is elected by the voters. So are Senators and Congressmen and Congresswomen. But justices and judges were just nominated by Presidents and confirmed by Senators. Citizens’ voice is not necessarily reflected in judicial nomination.
Unlike the other two branches which are legitimized by the voters, the judiciary brach’s legitimacy completely depends on how people perceive the court. If people lose faith in the selection process of Justices on the Supreme Court that will ultimately lead to its rulings not being respected.
The risk is especially high in this election given the uncertainties over mail-in ballots and already frequent court battles. These battles are fought in the lower courts but could be taken to the Supreme Court.
One plausible scenario is that Trump wins on in-person voting then sues to block mail-in ballots from being tallied. Trump’s new Supreme Court nominee could be the deciding vote to give the Presidency to Trump. If this happens, the Supreme Court will forever lose legitimacy.
Another possible scenario is that Biden wins the Presidency and the Democratic Party takes back control of the Senate. They pass a new healthcare bill but are blocked by the Supreme Court just as the Affordable Care Act was almost struck down by the Court. Democrats will be left with no choice but to expand the number of Supreme Court Justices. In this case, conservatives will lose faith in the Supreme Court.
The only way to avoid this is for the Senate Republicans to act responsibly and offer some kind of a deal to the Senate Democrats. They can, for example, promise not to fill the seat until the next President is inaugurated and in return, make the Democrats commit to not expanding the Court should they win the White House and the Senate.
Such an offer will deescalte the tension and stop the rapid politicalization of the Supreme Court.