The Republican argument for immediately nominating and confirming a replacement for Ruth Bader Ginsburg is now stripped of all pretext. It’s about raw power. In fact, it can be boiled down to three words – “Elections have consequences.” The Republicans won the presidency in 2016, they held the Senate in 2018, and there is nothing unconstitutional or illegal about wielding that power now, even when Americans are already voting in a presidential election that will end in less than seven weeks.
The argument has a certain Machiavellian simplicity about it. But there’s a problem – if you’d listened to Republicans speak before this moment, including just four short years ago, this raw power politics appears new. When they blocked Merrick Garland’s nomination to the Supreme Court, they claimed a neutral principle was at stake. Their argument? When an election looms, let the people decide.
Here was Senate Judiciary Chairman Lindsey Graham: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”
And here was Texas’s staunch “constitutional conservative,” Ted Cruz: “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
We can keep going. Florida’s Marco Rubio weighed in: “I don’t think we should be moving on a nominee in the last year of this president’s term – I would say that if it was a Republican president.”
This game of gotcha is all too easy, and it can also be flipped back at Democrats who loudly declared that Garland deserved a hearing and a vote. For example, Democratic Senator Christopher Murphy released a statement that said in part, “The president fulfilled his constitutional obligation today, now the Senate must fulfill ours . . . If Senate Republicans refuse to consider the president’s nominee, they will be willingly violating the spirit of that sworn oath.”
Chuck Schumer called on then-Judiciary Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell to “do their job and hold hearings so America can make its own judgement as to whether Merrick Garland belongs on the court.”
We know that President Trump will put forward a nominee. He’s promised to do it quickly. And now a critical mass of the Senate faces a choice, one that is likely to echo in American history. At the end of the day, do principles matter at all, or is power the only coin of the realm?
After all, while much can happen between now and November 3rd, the Democrats may well hold the House, narrowly take control of the Senate, and win the White House. At that point, they’d have the legal and constitutional power to not just reverse conservative control of the Court by amending the law to increase the number of Supreme Court seats (a process popularly known as “court-packing”), they could also permanently alter the balance of power in the Senate by admitting new states – namely Puerto Rico and Washington, D.C.
Republicans would object. Conservative Americans would protest. They’d appeal to “norms” and worry about a “tyranny of the majority.” But if power is all that matters now, Democrats could respond with the same three words from the start of this piece – “elections have consequences.”
But there is a deep and profound danger to stripping politics of principle and instead appealing to power alone. Americans are deeply and profoundly divided. As I write in my new book, Divided We Fall, a toxic combination of geographic clustering, negative polarization, and mutual enmity is placing great strains on our union.
When politicians’ words mean nothing – when only partisan interests prevail – it damages our social and cultural fabric. It deepens public anger and mistrust and unacceptably raises the stakes (and thus the tension) around each and every American election.
What can be done? An increasing number of center-right legal scholars, including the American Enterprise Institute’s Adam White and George Mason Law School professor Ilya Somin are proposing a variant of an approach best summed up as “make them keep their word.” It goes something like this:
First, Trump makes his pick.
Second, the Senate applies the Schumer principle and gives the nominee a hearing. This will have the benefit of giving the American people a more-complete picture of the qualifications and philosophy of the nominee and thus the stakes of the presidential election.
Third, the Senate then applies the Graham/Rubio/Cruz rule and does not vote before the election. If Trump wins, they then vote on the nominee.
But what if Trump loses? What principle comes into play? Joe Biden’s own words provide the guide.
In the October 2019 Democratic debate, Joe Biden clearly expressed his opposition to court-packing. “I’m not prepared to go on and try to pack the court,” he said, “because we’ll live to rue that day.” He continued, “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
He’s right. Court-packing is dangerous. Yet if the GOP violates its principles to jam through a nominee in Trump’s last days in office, the pressure from congressional Democrats to pack the court may well be overwhelming. So Biden should make a deal with the lame-duck Senate. Keep the seat open, and he’ll pledge not to sign any legislation packing the Supreme Court while he’s in office.
This isn’t the “unilateral disarmament” so despised by partisans. It’s a compromise. Both sides would shed Machiavellianism (for a moment, at least) and do something concrete to actually de-escalate America’s toxic political conflicts. America’s polarization is growing dangerous. Political violence stalks our streets. Now is the time for true statesmen to step forward, to put prudence before power, and reach a compromise that doesn’t just preserve the legitimacy of the court, it helps preserve the integrity of our republic.