Confirm the Next Supreme Court Justice Prior to November 3

CPI Staff — Tuesday, September 22, 2020

Supreme Court Justice Ruth Bader Ginsburg passed away over the weekend after a battle with metastatic pancreatic cancer. She was 87 years old, and lived a truly remarkable life. We honor her service to our country.

Ginsburg’s passing is a monumental moment in a year of monumental events. It has set up an unprecedented battle royale to confirm her replacement, just 43 days before the November election.

The Republican party has two critical choices to make: the who, and the when. The president has indicated he will announce a nomination this week — likely a woman. At a campaign rally in North Carolina this weekend he said of a potential nominee, “It will be a woman — a very talented, very brilliant woman.”

If we’re working from his announced list, this puts Amy Coney Barrett, of the Seventh Circuit, and Barbara Lagoa, of the Eleventh Circuit, in the running. Allison Jones Rushing of the Fourth Circuit and current White House counsel Kate Todd are also rumored to be in consideration.

All of these nominees will have to pass muster with Senate conservatives who are still reeling from the decision in Bostock v Clayton County, authored by a justice they all recently voted to confirm — Neil Gorsuch. The decision, which expanded federal employment discrimination protections to LGBT individuals, blindsided conservatives who were reassured that Neil Gorsuch would defend fundamental religious freedom rights against elite political correctness.

As a result, conservative senators are going to want reassurance as to where these nominees stand on key social issues. Sen. Josh Hawely (R-Mo.) has made clear he will need specific information as to where the nominees stand on Roe v. Wade:

“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley said in an interview with The Washington Post. “By explicitly acknowledged, I mean on the record and before they were nominated.”

Hawley added: “I don’t want private assurances from candidates. I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predications. I don’t want any of that. I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

The timing of confirmation is also of critical importance: before the election, or after, in the lame duck session before the inauguration. At this juncture, it would appear that confirmation prior to the election is the smarter play.

But first, there is the baseline imperative for them to act. As Dan McLaughlin at National Review has laid out, it is historically and constitutionally the right thing to do. In fact, if Senate Republicans chose not to confirm a nominee until after the election, as Democrats are demanding, they would be setting a new precedent — in McLaughlin’s words, “a historically unprecedented act of unilateral disarmament.”

At twenty-nine times in America’s history, there has been an open Supreme Court vacancy in a presidential election year or in a lame-duck session before the next inauguration. In all twenty-nine cases, the president made a nomination.

This specific situation, where the president and the Senate majority are of the same party, also has substantial historical precedent. There have been nineteen instances between 1769 and 1968 where presidents sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Seventeen of those nominations were successful, occurring in nearly equal parts before the election, or in the lame-duck before the inauguration.

Finally, there is the simple fact that action, or no action, is the Senate’s constitutional prerogative. The Constitution gives the Senate the role of advising and consenting. It leaves it to the Senate to decide how that role shall be implemented. It’s why it was constitutionally appropriate (and historically supported) for the GOP Senate not to take up the Merrick Garland nomination in 2016. And it’s why it is appropriate for them to act on the forthcoming nomination now, as opposed to waiting for a new president.

So both historical precedent and constitutional prerogative establish that the Senate can act without waiting for a new president. Why should Senate Republicans act prior to the election, as opposed to after, in the lame-duck? Here is my argument.

  • Ensures a fully staffed Supreme Court to handle presidential election disputes. The forthcoming presidential election is likely to be extremely contentious. Joe Biden’s campaign has already announced an expanded staff of lawyers prepared to litigate whatever outcome presents itself in November, or in the weeks that follow. With Ginsburg gone, and Chief Justice John Roberts a swing vote, it’s possible we could see a 4-4 split on a potential Trump v Biden challenge. Such a deadlock would send the electoral outcome to the circuit courts, which would likely end up in a split decision, further throwing the country into chaos. A fully staffed Supreme Court is vital to ensuring that election disputes get a fair — and final — hearing.

  • The Senate’s math. Control of the Senate is up for grabs in 2020 — but the party alignment could change before the end of the year, based on the outcome of the Arizona Senate election. Current sitting Senator Martha McSally was appointed to the seat following the death of former Sen. John McCain (R-Ariz.), not elected. Should her challenger, Mark Kelly, win on November 3, he could be seated as early as November 30, removing a GOP Senate vote at a crucial time.

  • The Senate’s incentives. The key feature of a lame duck session — the months immediately following the election — is that senators have nothing more to lose. The outcome of the election has already been determined. What they do, or fail to do, no longer has any electoral significance. This, obviously, changes the calculation of senators who are in cycle. There are 20 Republicans up for re-election (and three open seats), including key Senators like Mitch McConnell (R-Ky.), Susan Collins (R-Maine), and Senate Judiciary Chairman Lindsay Graham (R-SC). Two Democrats from states Trump won, Senators Gary Peters (R-Mich.) and Doug Jones (D-Ala.) are also in cycle. This election is a key base motivator and holding the vote before the election ensures that these senators will be listening to their constituencies. Holding the election, in the lame-duck, ensures these senators can ignore their voters without consequence.

  • The court’s legitimacy. For the same reason, holding a vote prior to the election ensures the fullest amount of legitimacy behind both the process and the future justice. The Democrats have made clear they will refuse to assign any legitimacy to a nominee confirmed before the next inauguration, but it is a much more difficult argument for them to make if the confirmation is done within the parameters of both the presidential and the congressional election timeline, rather than outside of it.

  • Elections matter. This is, perhaps, the simplest and truest reason for the GOP Senate to act: it’s what Republican voters elected them to do. Republicans were given a mandate in both the White House and the Senate to act on issues of national significance as they see fit and as they are constitutionally empowered to do. Filling a Supreme Court vacancy is not subject to made-up rules, or negotiations, or future-forecasting. It is simply about a constitutional prerogative of the party in power, no more, and no less. Republicans should embrace that mandate, not shy away from it.

Democrats have already responded to the possibility of a confirmation vote as has become their habit: calling for riots and court-packing. Sen. Chuck Schumer (D-NY) reportedly told his conference that “nothing is off the table” if Republicans proceed.

But most of what Democrats are threatening — court-packing (adding additional seats to the court), upending the Senate’s filibuster, eliminating the electoral college, and giving statehood to Puerto Rico and the District of Columbia (thereby ensuring four additional Democrat senators) — they are already planning to attempt, regardless. In other words, these outcomes will be pursued regardless of what the Republicans decide to do with this Supreme Court nomination.

Senate Republicans have the majority, the constitutional imperative, and the historical precedent to support their action. Whether or not they have the will is yet unknown.

This piece recently appeared as part of CPI’s Weekly Compass email. If you’d like to receive the Weekly Compass, sign up on our homepage.