A Supreme Court seat is suddenly vacant on the eve of the presidential election. President Trump should promptly nominate the late Justice Ginsburg’s successor, but Senators should delay a final vote on the nomination until after the election.
If Trump wins reelection, then his victory will secure not just the new justice’s appointment, but also her public legitimacy. And if Trump loses, then Senate Republicans and Democrats will have an opportunity to commit to not pack the Court, and thus to not destroy it.
Supreme Court vacancies are the most brutal part of our soullessly brutal political era. And this is because of a double-failure of constitutional self-restraint. The first failure is obvious: the political branches have come to treat each nomination like total war.
The second failure is the Court’s own decades-long failure of self-restraint, as justices reached beyond their constitutional limits and pretended that certain policy questions were actually matters of constitutional rights. In cases such as Roe v. Wade, justices turned the “Highest Court” into the political world’s commanding heights. Now every presidential election is a fight to control the future of the Court. And every presidential nomination to the Court is a fight to the bitter end.
But that fight has become even more bitter—just like everything else in our politics has become even more bitter—because our republic is increasingly devoid of the constitutional virtues needed to moderate our worst political vices: the vices that lead a president to abuse his diplomatic power, his pardon power, and other powers; the vices that lead a Republican House and Senate to abandon any pretense of institutional duty to check-and-balance the executive branch; the vices that lead Democrats to convince themselves that they should “pack the Court”; the vices that drive activists on both sides to literally fight in the streets; the vices that drive us to believe that our political opponents should be locked up. And now the vices that may drive us to blow up our Supreme Court.
The fight to fill Justice Ginsburg’s seat will be waged under many shadows—the shadow of Bork, the shadow of Garland, the shadow of Kavanaugh. In that respect, I cannot pretend that I entertain any real doubts about the recent history of Supreme Court nominations. This is my account of it:
Over three decades, Democratic Senators ratcheted up the stakes at every turn, with Republicans almost always playing catch-up. In 1987, barely one year after the Senate confirmed Antonin Scalia’s appointment to the Court with a 98-0 vote, Senator Kennedy and his colleagues blindsided the Reagan administration with an unprecedented declaration of total war against Robert Bork. Even after Bork, and the failed war on Clarence Thomas, Senate Republicans did not react in kind: they joined Senate Democrats in confirming Ruth Bader Ginsburg 96–3, and Stephen Breyer 87–9. Senate Republicans would not begin to return fire on Democratic nominations to the Supreme Court until 2009, after the heated Roberts and Alito hearings.
Similarly, when Senate Democrats undertook a new strategy of filibustering several of George W. Bush’s lower-court nominations, Republican senators considered using the “nuclear option” to abolish judicial filibusters but stopped short; the bipartisan “Gang of 14” senators agreed to step back from the precipice. Yet eight years later, Senator Harry Reid led Senate Democrats to detonate the nuclear option, clearing a path for three more Democratic appointments to the crucial D.C. Circuit.
At that moment, Senator McConnell warned, “you’ll regret this”—and surely they did, as Reid’s nuclear option opened the door to an entire generation of President Trump’s lower-court appointments and, upon extending the new rule to Supreme Court nominations, Justices Gorsuch and Kavanaugh.
Those three decades of constitutional hardball surely made it easier for Senate Republicans to quickly commit not to act on Merrick Garland’s election-year nomination in 2016. Democrats denounced this (and still denounce this) as unprecedented obstruction, but it wasn’t completely without precedent: In 1968 the Senate’s Republican minority successfully prevented the Senate from moving on the nomination to fill Chief Justice Warren’s seat, and they specifically said that they were trying to hold the seat because of the presidential election.
The Senate had not just the precedent, but also the power, to ignore Garland’s nomination. President Obama claimed that senators had a “constitutional duty” to give Garland an up-or-down vote, just as President Bush claimed against Democrats.
They were both wrong.
The Constitution neither expressly nor implicitly contains any such duty. The Senate gets to decide whether to act on a judicial nomination, and it decides this as a matter of politics and prudence. The Senate Republicans were not wrong to disregard Garland’s nomination. But it is now clear that they chose the wrong reason to justify it.
“The American people should have a voice in the selection of their next Supreme Court Justice,” Senator McConnell announced immediately upon Justice Scalia’s passing in February 2016. “Therefore, this vacancy should not be filled until we have a new president.” Republican senators promptly joined him, often invoking former Senator Biden’s own argument that Senators should not confirm Supreme Court appointments during a presidential election year.
“The Biden Rule,” the Senate’s Majority Leader announced, “reminds us that the decision the Senate announced weeks ago remains about a principle, not a person.”
“About a Principle”
After 30 years’ war over Supreme Court nominations, hypocrisy is a vice that virtually anyone in the political process can credibly be accused of. I focus, unsurprisingly, on Democrats: From the “Biden rule,” to Obama’s pre-presidential attempt to filibuster Alito, to Senate Democrats’ old belief that even a president’s election-year nominee is entitled to a vote, to their earlier flip-flop on judicial filibusters, there is no shortage of items for Republicans to denounce as hypocrisy.
Democrats, no less surprisingly, will give reasons to defend their changes in mind as changes in circumstances. They will argue that Republican evolving tactics justified their own. They will argue—they already do argue—that the McConnell Rule either requires the Senate’s inaction this year or justifies court-packing next year. Or both. Or more.
But for Senate Republicans who four years ago adopted Senator McConnell’s principle that a Supreme Court vacancy arising during a presidential election year must be filled by the next president, there is no way around their own words. They can withhold a vote on a nomination for the next duly elected president, or they can be shameless hypocrites. But not both.
Then again, they may conclude that the cost to their reputation is worth the gain on the Court.
But the Senators’ gain on the Court may also be a cost to the Court. Because the justices will be forced to undertake their work, for years to come, in the face of challenges to the Court’s legitimacy.
Even though the circumstances surrounding the appointment of this justice will prove nothing about the new justice herself; and even though her work, like that of her colleagues, will be judged best in terms of the Constitution’s meaning, not in terms of the Republican senators’ own credibility; the fact remains that the Court’s work will be seen by many, many Americans—and not just Democrats, but many others, too—as the product of the most palpably hypocritical political action in living memory.
This would be profoundly unfair to the nominee. Conservatives demand that Supreme Court justices do their jobs with utmost commitment to principle. And that commitment to principle requires justices to decide extremely controversial cases in ways that will attract incredibly heated political and personal attacks. For precisely that reason, Republican senators need to do everything possible to protect the justices’ perceived legitimacy, rather than undermine it.
Given what is at stake—all of what is at stake—Republican senators should not vote on a nomination before the presidential election. They should constrain the Senate with the principle that they used to constrain it four years ago. True, there is no formal “rule” that binds them, other than their own words. But they should restrain themselves with their words.
Indeed, when the constitutional crisis of our time is a crisis of the failure of self-restraint, that crisis will only end when one side restrains itself at the very moment when it cannot be restrained by the other side. For Republicans, that moment is right now, and the fact that self-restraint would be so painful is itself the best evidence that self-restraint is so necessary.
Some will denounce this as “disarmament,” as if constitutional politics were nuclear war. They will point to Madison’s famous observation that constitutional government must befit men who aren’t angels, and they will pretend that Madison meant that constitutional government requires no virtue at all.
Madison meant the very opposite: He emphasized that republican government, more than any other form of government, relies upon the virtue of the people and their leaders.
At this moment, the “angels” we need to keep in mind are not Madison’s, but Lincoln’s “better angels of our nature,” which ought to bring us back from the brink. And, at this moment, to withhold a vote until after the election is to create the opportunity to save the Court from not just one crisis, but two.
After the Election, A Decision
If Trump wins reelection, then his new appointee to the Court, and the Court’s new six-justice conservative majority, will benefit from the full credibility of the Constitution’s electoral process. Republicans will have held themselves to their own principle, and by withholding a vote until after the election, they will avoid a judicial crisis of their own creation—namely, appointing a justice in a manner so hasty and so hypocritical as to inevitably color much of the public’s view of the justice and the Court.
And if Trump loses, then delaying a vote will create the circumstances necessary to avoid a judicial crisis of the Democrats’ creation—namely, a crisis caused by Democrats forging ahead with a reckless plan to “pack the Court” by legislating new seats.
More specifically: if Trump loses, then a coalition of Republican senators should negotiate a deal with Democratic colleagues, agreeing not to confirm a justice in the lame-duck session, and not to pack the Court. Both sides will have dangerous weapons in hand: the power to confirm a justice in the lame-duck session, and the power to pack the Court after Inauguration Day. Both sides can agree to forswear using those powers, and step back from mutually assured destruction. (A President-elect Biden, who understands the harm that Court-packing would do to the Court—“we’ll live to rue that day,” he’s warned—could join them.)
Such a deal would be binding only so long as senators honored their own word, and it would require mutual trust and self-restraint. But that is precisely the point: at a moment when Republican and Democratic senators are poised to damage the Court, they can instead begin to repair the Senate itself.
None of this is to say that President Trump shouldn’t nominate someone. Quite the opposite: he should nominate Amy Coney Barrett, or another solid nominee, as soon as possible. And the Senate Judiciary Committee should begin the hard work of serious, deliberate consideration of the nomination in the months ahead. The Supreme Court, the Constitution, and the people deserve nothing less. A credible confirmation process will help to inform Americans as they cast their presidential votes, and inform senators as they decide what action to take after the votes are counted.
Start the process. But save the vote. Save the Court. And in so doing, save our country.