The death of Supreme Court Justice Ruth Bader Ginsburg has raised the stakes for 2020, as if they needed raising.
Donald Trump is urging senate Republicans to move “without delay” to replace her, and I find myself in the rare and uncomfortable position of agreeing.
Republicans must nominate and confirm a conservative to the Supreme Court. I say this as a conservative who has frequently criticized Trump’s disregard for democratic norms and institutions. Accepting Trump was always a devil's bargain—one that I wasn't willing to make. But if conservatives are going to suffer the downside of this deal, we might as well at least benefit from the upside. And this is one of the few potential upsides of a Trump presidency for Never Trump conservatives.
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Of course, what “without delay” means is of debate. Should a vote take place before November 3, or is it more prudent to fill the vacancy during the lame-duck session? Whatever happens, I'm confident Mitch McConnell, the shrewd operator that he is, will game out the best strategy for Trump and his vulnerable Senate Republicans. But I can't imagine he will squander this opportunity. Nor should he.
Supreme Court Justices are the whole reason many conservatives got involved in politics in the first place, and a big reason why our politics have become so heated in recent decades—on both sides. This is why Robert Bork was "Borked." This is why we had huge fights over Clarence Thomas and Brett Kavanaugh. If you are a conservative, this is what you’ve been working for for decades; to paraphrase Bill Parcells, this is why we lift all them weights.
We didn’t sign up for the world of politics and ideas so that Republican presidents would not nominate conservative judges when they finally got the chance to flip the balance of the court.
Now, if you’re a progressive, you see things very differently. The thought of Trump naming RBG's successor is understandably infuriating, especially based on the timing and the context. Nothing I could say will change what you are feeling. My only word of caution is that it would be a mistake to view a nomination and confirmation, even this late in the game, as some wild and egregious violation of the rules of the game. Just ask Joe Biden.
My concerns with Trump have always been about the things he does that no normal Republican would or should do. If Marco Rubio were president, you better believe I would be encouraging him to go forward with this nomination and confirmation. And you better bet progressives would demonize his nominee.
That is natural and (sadly) normal. In this regard, Trump is not a deviation of norms. Indeed, rather than changing the rules, he is seeking following the letter of the rules. This should be viewed by progressives as something that is unfortunate, yes, but also, legitimate.
Of course, this should not be done to “own the libs.” Trump should pick someone who is highly qualified and credible, which (in fairness) has been Trump’s pattern. He might even consider replacing RBG with a female judge like Amy Coney Barrett or Barbara Lagoa. Maybe it'll be a historic pick like Amul Roger Thapar, a favorite of McConnell’s. Or maybe he will consider a likable member of their exclusive club, Senator Mike Lee. The goal should not be to intentionally antagonize Democrats, spit in the face of forbearance, or run up the score.
But the decision cannot be made to appease the critics who are threatening to “burn the entire fucking thing down” (or even shut it down) if their demands are not met. That is the definition of norm-breaking and illiberal behavior. We cannot let a “heckler’s veto” stop the normal exercise of democracy.
Temperamentally moderate Republican politicians may balk at the idea of stirring up more trouble in this already fraught year. But I think Trump has a point on this one. This is why they got elected, in the first place.
At this point, you are probably thinking about the injustice and hypocrisy involved in McConnell’s 2016 decision to sit on Merrick Garland’s nomination until after the election, when Justice Antonin Scalia died. This might have been an example of hardball politics, but it was entirely constitutional for the senate to withhold consent. And, as Ilya Shapiro points out in his new book, Supreme Disorder, it was "by no means unprecedented." For example, John Quincy Adams had a nominee who was "postponed indefinitely." McConnell’s maneuver might have been less than chivalrous, but while election year appointments are common, the last time the senate confirmed a nominee from the other party’s president was 1888. When the president's party does not hold the Senate, there is no guarantee that the senate will confirm his or her nominee, or even hold hearings.
Again, elections have consequences. Republicans, for now, control the presidency and the Senate. They won. These are the legitimate spoils. They have a rare opportunity that (thanks to Trump) might not present itself for a long, long time. This could be one positive (and potentially lasting) part of Donald Trump’s legacy.
Nominating and confirming a Supreme Court Justice would not be some crazy travesty of justice. If Democrats want to threaten retribution, such as packing the court (which, to be clear, would not be illegal), they will be the ones accelerating the breaking of norms. Instead, they should seek to win elections and stick with nine Supreme Court Justices. Once we (re)open the door to expanding the size of the court, it will never end. There is no limiting principle. And just as Democrats might now regret Harry Reid’s decision to open the door on blowing up the filibuster for non-SCOTUS appointments, Democrats might one day regret packing the court, too.
Either way, Republicans shouldn’t allow threats to hold them hostage or prevent them from confirming a qualified nominee. This is, after all, part of the job.
