Ryan J. Lanier, Editor-In-Chief
I would like to preface this article with a tribute to Justice Ruth Bader Ginsburg. While I often disagreed with her decisions, her legacy as an American icon and legendary figure on the Supreme Court is undeniable. She sets a high standard for any lawyer, liberal or conservative, to seek to emulate. Perhaps the strongest example that she set was her deep friendship with Justice Antonin Scalia. Coming from the exact opposite ends of the polarized partisan divide, these two justices overcame their differences and developed a relationship that transcends politics. I pray that we as Americans can work to imitate that friendship and overcome our partisan divide. Finally, I am incredibly grateful for her lifelong service to our nation. Rest in peace Justice Ginsburg.
The purpose of this article is to examine the vacancy created on the United States Supreme Court by the passing of Justice Ruth Bader Ginsburg. This article aims to provide a reasoned examination of what has happened, what continues to happen, and what I expect will happen in the coming weeks. This vacancy comes at a time of deep division in our nation. My goal is to provide some historical context and spark a deeper conversation that is unlikely to dominate as this process continues.
Nominating and Confirming a Justice in an Election Year
Since the formation of the Supreme Court, presidents have been faced with vacancies on the Supreme Court during election years 29 times. Each time, the president nominated a candidate to fill the position. As the historical record shows, any president possesses the power to appoint a nominee to fill a vacancy on the Supreme Court whenever it should occur. The primary controversy surrounding the current vacancy revolves around the decision made by Senate Republicans to refuse to even provide a hearing for President Barack Obama’s nominee, Merrick Garland, to fill the seat vacated by the death of Justice Antonin Scalia in 2016. The decision by Senate Republicans refusal to consider Garland (1) does not create a binding precedent in 2020, and (2) would set a bad precedent if it did, and therefore ought to be disregarded.
First, a comparison of the circumstances in 2016 and 2020 shows that the two scenarios are very different. In 2016, the Democrats controlled the presidency, while Republicans controlled the Senate. Because Article II of the Constitution gives the president the power to make nominations to the Supreme Court, President Obama rightfully exercised his power to select Justice Scalia’s replacement. Under Article I, however, the Senate must confirm any Supreme Court nominee before they are to take office. With the Senate in the hands of the opposite party of the presidency, the decision on whether to confirm Garland lay with the Republican Senate. They had no obligation to hold hearings or votes on such a nominee. In 2020, the Republicans hold both the presidency and the Senate, and once again, the Republican majority is in position to decide whether to hold hearings or votes on a nominee. While the tactics of Senate Republicans may appear to be inconsistent, or hypocritical, the reality is that in both situations they are merely exercising their authority to confirm a Supreme Court nominee.
Even if one were to hold firm to the argument that Senate Republicans set a binding precedent in 2016, the idea that their actions should set a binding precedent ought to be rejected. As the history of Supreme Court nominees in election years shows, there is much more precedent for at least considering a nominee than not. Viewed in context, the decision of Senate Republicans to refuse to consider Merrick Garland should be seen as an anomaly, not a binding precedent. Further, if any precedent were set, it is a bad precedent and must therefore be rejected. Assuming that the Senate Republicans acted improperly in 2016, why should we be bound by that decision? Choosing to stick to this bad precedent binds us to an incredibly partisan move that jeopardizes the integrity of the Supreme Court and will likely only lead to even deeper political division in this hyper-partisan atmosphere. Maintaining and reinforcing such blatantly wrong precedent is no way to govern, and only creates more dangers in the future. For this reason, calls to follow the example of the Republican Senate in 2016 ought to be rejected.
Confirming a Justice With a Lame Duck Presidency or Senate
At the time of Justice Ginsburg’s death, the election was 46 days away while the installation of new senators was 107 days away. Of the past 10 Supreme Court justices to be confirmed, the shortest confirmation process was Justice Ginsburg’s at 50 days. The longest was Justice Clarence Thomas’ at 99 days. Given the timing of this opening, it appears incredibly unlikely that the United States Senate will be able to hold a complete confirmation process with enough time to seat a new justice before the election. The confirmations of Justice Thomas and Justice Brett Kavanaugh should serve as strong examples here. The Senate Democrats will do everything in their power to prevent a nominee from receiving a hearing or confirmation vote.
As a result of this timing, it is probable that a confirmation vote on a nominee from President Trump will not be held until after the election on November 3. This means that such a vote could potentially be held after President Trump and at least four Republican senators have been voted out of office (assuming Senator Doug Jones of Alabama loses to the Republican nominee). This would mean that the majority party making the decision to confirm a Supreme Court nominee would actually be in the minority in the Senate come January, while the presidency would also be held by the opposition party. Alternatively, President Trump could be voted out of office while the Republicans maintain their hold on the Senate. Here the question revolves around whether the Senate should confirm the nominee of a President who had been repudiated at the polls. Finally, President Trump could win reelection while losing control of the Senate, thus bringing into question the power of a lame duck Senate to confirm a nominee after being repudiated at the polls.
The nomination and confirmation of a Supreme Court justice by a lame duck president and Senate is not, however, unprecedented. In 1801, for example, after losing the election of 1800 in the House of Representatives, President John Adams and the Congress passed the Judiciary Act of 1801, which dramatically altered the judicial landscape, including the reduction of the Supreme Court from six justices to five. After Chief Justice Elbridge Gerry retired in 1800, Adams approached John Jay, the first Chief Justice of the Court, offering him the position once again. Jay’s reply would not be received until January of 1801. Consequently, John Marshall was nominated Chief Justice on January 27, 1801 by a lame duck president and confirmed on January 31, 1801 by a lame duck Senate.
Marshall’s ascension to the Supreme Court bolsters the argument in favor of confirming a Supreme Court justice by a lame duck president and a lame duck Senate. Should President Trump’s nominee fail to receive a confirmation vote before November 3, the saga of the lame duck Congress of 1800-1801 provides strong historical precedent for the confirmation of a new justice after losing at the polls. At the same time, choosing to follow this example should be approached only with extreme caution. Like today, the election of 1800 was fraught with extreme partisan tension and questions of constitutional crisis. Indeed, like today, the controlling party of Congress threatened impeachment of the judges that benefited from Adams’ late appointments. The saga of Marbury v. Madison shows the consequences of a hostile Congress and president responding to late decisions of their predecessors. Following this model could have extreme consequences, especially when many prominent Democrats today have voiced support for packing the Court.
In this essay, I have aimed to provide a response to the common narratives and misconceptions that have arisen and will continue to arise following the death of Justice Ginsburg. Ultimately, I hope that I have shown that not only do the actions of Senate Republicans in 2016 not create a binding precedent in 2016, but even if such a precedent did exist, it ought to be rejected as erroneous. Further, the example of John Marshall provides a basis for an argument for a nomination and confirmation by a lame duck president and Senate, while also providing a warning of the consequences of such a move. President Trump, Senate Republicans, and anyone who supports the confirmation of a conservative justice to fill the seat vacated by Justice Ginsburg should proceed with extreme caution.
In response to President Trump’s promise to quickly fill the new vacancy, Democratic politicians ranging from former Vice President Joe Biden to Speaker of the House Nancy Pelosi have voiced their opposition to the confirmation of a new justice prior to the election. In developing a response to the actions of Senate Republicans, Democrats find themselves with several options.
First, with control over the House and potentially the Senate in 2021, Democrats could choose to follow the example of the Republicans of 1801 and seek to reduce their opponent’s hold on the Court and impeach a sitting justice. In 1801, Republicans in Congress targeted Justice Samuel Chase in an impeachment trial that many saw as a dry run for a future attempt to remove Chief Justice Marshall from power. The move showed the willingness of the vengeful Republicans to seek revenge over their opponents and reshape the Courts. In the end, while the attempted impeachment of Justice Chase failed, a healthy fear of Congressional Republicans led Marshall to consider ceding some judicial power to Congress. Although Marshall’s potential ceding of power never came to pass, his carefully crafted decision in Marbury, a case delayed by the lack of a Supreme Court term in 1802 thanks to the repeal of the Judiciary Act of 1801 by Congressional Republicans, shows the impact that the fears of a hostile Congress can have on a strong-minded judiciary.
The second and most concerning option for Democrats in the coming years is the potential to “stack the Court” with additional seats created to offset the appointments of Justice Neil Gorsuch, Brett Kavanaugh, and a potential third Trump appointee. Such a decision would end the last semblance of integrity and independence on the Supreme Court as each subsequent administration would have no reason not to continue to add seats whenever they are in position to do so. Such a result would also destroy any reason to appoint justices willing to show restraint. Why appoint a series of originalist judges if your successor will only add more seats of activists? Such a world incentives winning now, rather than worrying about the consequences. Additionally, this scenario would make precedent completely worthless, as a president could easily appoint justices to reverse the decisions of his or her predecessor. In the more likely scenario, the justices might be incentivized to temper their decisions out of fear and thus vote more in line with the president, as happened under President Franklin Roosevelt. Yet again, this scenario demonstrates a world where justices act out of fear of the Executive, further undercutting the independence of the Court. Ultimately, the firestorm created by Justice Ginsburg’s passing shows just how important the Supreme Court has become to our political system. Indeed, as I have written before, the Supreme Court has grown to possess power that it was never meant to hold. Indeed, that both sides are prepared to fight the most vicious confirmation battle in history goes to show how just how reliant both sides of the aisle have become on the United States Supreme Court. Any person, regardless of their political persuasions should be terrified by the world that we live in where a single seat on the Supreme Court brings about threats of domestic terror. Perhaps we can learn from our disastrous mistakes and overcome our extreme partisanship in these trying times. Ultimately, we ought to aim to emulate the friendship between late Justices Ginsburg and Scalia, while reining in the power of an unchecked Court in the process.
About the Author
Ryan Lanier is the Editor-in-Chief of American Discourse.