No political partisan, I hope, greeted the recent news that Supreme Court Justice Ruth Bader Ginsburg had liver cancer with the craven hope this would force her off the bench and open up a seat on the nation’s highest court.
If that was you, delete your Twitter account, step away from politics, go back to church, embrace meditation, spend time with your family — really, do whatever it takes to regain some semblance of humanity. You need a break.
Ginsburg, 87, announced last month she’d been treated for the cancer but that chemotherapy had been “yielding positive results.” She says she intends to stay on the bench.
However, it was also impossible to ignore the obvious, grim possibility: There’s the potential of an open spot on the Supreme Court before November. There’s also the possibility — however slim — of retirements on the high court. This leaves a quandary for Republicans.
They control the Senate and the White House. That’s all you need to get a Supreme Court justice confirmed. The GOP-controlled Senate refused to consider Merrick Garland, Barack Obama’s nomination to the bench after the death of Antonin Scalia, citing the so-called “Biden Rule” — a very informal arrangement proposed by in a speech by then-Sen. Joseph Biden in 1992 under which a president would either refuse to nominate a justice in an election year or nominate a moderate acceptable to both parties.
Then again, Democrats vehemently opposed this, demanding Garland receive a hearing and an up-or-down vote in the GOP-controlled Senate. They were outraged he didn’t get either — and would have been outraged if the Senate didn’t approve the nomination. Since then, the Democrats have entertained thoughts of “court-packing” — expanding the size of the Supreme Court in order to sit more sympathetic, liberal justices — in order to rectify this grave injustice.
Now that the possibility exists that President Donald Trump might have the opportunity to appoint another Supreme Court justice, Democrats are threatening to pack the bench in retaliation if he puts forth a nomination. Mind you, they might pack the bench anyway, but they’re really going to do it if Trump appoints another justice.
“We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama,” Virginia Democrat Sen. Tim Kaine said in an interview reported by NBC News on Monday.
“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” Kaine added. “I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.”
(Just to make the point clear, the NBC story was headlined: “Democrats warn GOP: Don’t fill a Supreme Court vacancy in 2020 or we’ll retaliate.”)
Democrat Sen. Mazie Hirono of Hawaii, meanwhile, said there’d be a “hue and cry” if Trump were to nominate a Supreme Court justice this year. Of course, she already wants to eliminate whatever advantage the Trump administration might have gotten in the federal courts by restructuring them, so I’m not exactly sure how this is a carrot-and-stick situation when all I see is stick.
“Regardless of whether they try to do it or not, there have already been discussions about what we can do with our courts to make them much more balanced in many ways,” Hirono told NBC. “Because the majority of the judges are white, male, young, with a particular orientation, ideological orientation.”
And the Democrats are going to pack the court with judges who are … more representative of the population, old and with no political orientation? I’m not going to make assumptions on the first count, but I’m pretty sure the last two aren’t happening.
As for former Vice President Joe Biden, he’s has come out against court-packing — for whatever that promise is worth if he manages to defeat Trump in November.
Last July, according Biden said in an interview with the website Iowa Starting Line that he was against the idea because “we’ll live to rue that day.” In an October primary debate, according to The Washington Post, he said that, “I would not get into court packing. 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.”
That said, the betting favorite for his running mate has a different view of the matter.
“We are on the verge of a crisis of confidence in the Supreme Court,” said California Democrat Sen. Kamala Harris in March of 2019, according to Politico. “We have to take this challenge head-on, and everything is on the table to do that.”
When you consider Harris is arguably the least left-leaning of the potential vice presidential picks left, that doesn’t inspire confidence in the matter. This isn’t just because a running mate is a statement of what a candidate’s values are and how those values have evolved during on the campaign trail. Biden’s pick is also considered consequential because there’s the question of how fit Biden is — and how soon a potential vice president would begin exerting policy power.
If the Supreme Court position opens up, two of the three Republicans who have any say in the matter of whether a nominee is advanced — Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Lindsey Graham — are in favor of advancing a nominee.
A spokesman for McConnell told NBC the situation was different this time around because the president’s party was controlling the Senate — unlike in 2016, when a Democrat was in the White House and the GOP was in control of the upper house.
As for Graham, he told NBC the ugly, partisan tenor of the confirmation hearings for now-Supreme Court Justice Brett Kavanaugh in 2018 had made him amenable to considering a Supreme Court nominee in an election year.
“Yeah. We’ll cross that bridge. After Kavanaugh, the rules have changed as far as I’m concerned,” the South Carolina Republican said. “We’ll see what the market will bear if that ever happens.”
As for Trump, while he hasn’t gone on record, it would be difficult to see the president not putting forth a nominee.
Senate Majority Whip John Thune of South Dakota, meanwhile, said the GOP would move forward with the nomination process even if President Trump wasn’t re-elected the vacancy occurred in the lame-duck session, according to NBC.
Whether or not a court candidate would be confirmed either way would be another thing; GOP Sen. Lisa Murkowski of Alaska has told The Hill she would vote against an election-year nominee and former Senate Judiciary Committee Chairman Sen. Chuck Grassley of Iowa — who blocked Garland’s nomination — said he “couldn’t move forward with it” were he still in charge of the committee.
Granted, we should all keep in mind the words of GOP Sen. Thom Tillis of North Carolina. According to CNN, when asked about the potential vacancy, he only said, “I am praying for Justice Ginsburg’s health. That’s all I’m really focused on right now.”
That’s fair enough, but the possibility needs to be considered. Inasmuch as this would invite retaliation from the Democrats if and when they regain power in the Senate and White House, it’s eminently likely retaliate anyway — and that it’s followed by a pattern of mutually assured destruction every time power switches hands.
Draft language for this year’s Democratic Party platform obtained by NBC News would call for “structural court reforms to increase transparency and accountability,” saying the GOP “packed our federal courts with unqualified, partisan judges who consistently rule for corporations, the wealthy, and Republican interests,” castigating them for “blocking a Democratic president from appointing a justice to the Supreme Court.”
That’s court-packing language — and it’s a direction the Democrats would have arguably moved in anyway, given that they saw the ability to have Garland confirmed as their God-given right.
If an opening occurs before the next presidential inauguration, and Republicans demur and don’t nominate a candidate, it’d arguably only slow a process Democrats are embracing anyhow — and prove to Republican voters the party establishment’s willingness to back down to Democrat demands.
CORRECTION, Aug. 4, 2020: This article originally misidentified the state represented by Senate Majority Whip John Thune. He represents South Dakota. It also misidentified the state represented by former Senate Judiciary Chairman Charles Grassley. Grassley represents Iowa.
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