OPINION
In the battle over the US supreme court,
Democrats can still have the last laugh
Lawrence
Douglas
If Biden wins, he could pack the courts. That would be
a justified gesture of constitutional restoration, not usurpation
Sat 19 Sep
2020 19.00 BSTLast modified on Sun 20 Sep 2020 02.51 BST
‘Adding two additional justices to Court’s ranks would
simply counterbalance the abuse of constitutional rules that enabled the
confirmation of Gorsuch and RBG’s replacement.
“My most fervent wish is that I will not be replaced
until a new president is installed.” Such was the dying hope of Ruth Bader
Ginsburg, a wish the Senate majority leader, Mitch McConnell, is determined to
deny the late, great justice.
Recall:
this is the same Mitch McConnell who, in the wake of Antonin Scalia’s death
nine months before the 2016 election, solemnly announced: “The American people
should have a voice in the selection of their next supreme court justice.
Therefore, this vacancy should not be filled until we have a new president.”
Never mind
that the “McConnell rule” lacked grounding in constitutional materials and
historical practice. The constitution empowers the president to nominate
justices and tasks the US Senate with confirming or rejecting them. In a
150-year span – from 1866 to 2016 – the Senate never once prevented a president
from filling a US supreme court vacancy. But armed with a rule of his own
invention and a Republican majority in the Senate, McConnell brazenly refused
to so much as grant a hearing to Merrick Garland, Barack Obama’s eminently
qualified nominee to fill the supreme court vacancy left by Scalia.
But no
sooner had news of Ginsburg’s death broke than McConnell promised a Senate vote
on Donald Trump’s replacement nominee – notwithstanding the fact that we are
but six weeks removed from a presidential election and early voting has already
started in some places. It turns out that the McConnell rule had a serious
catch – it only applies when different parties control the Senate and the White
House. And so the McConnell non-rule can be stated crisply: Republican
incumbents in election years get to fill supreme court vacancies, but not
Democrats.
To accuse
McConnell of breathtaking hypocrisy is to waste our breath. The charge sticks
only if the hypocrite feels a tug of conscience for failing to follow their
pronounced principles. In McConnell’s case, one senses nothing but a cynical,
chuckling pride in applying and abandoning made-up rules to justify whatever
result he wants.
And chuckle
he should. McConnell’s cynical distortion of the Senate’s role in judicial
confirmations has served his party well. In 2017, McConnell used the so-called
“nuclear option” to end debate on Neil Gorsuch’s nomination to the supreme
court. (Gorsuch was Trump’s pick to fill the vacancy that Obama had chosen
Garland to fill.) McConnell insisted this was simply payback for Harry Reid’s
use of the same option, in 2013, to remove obstacles to Obama’s lower federal
court appointments.
But
McConnell’s tit-for-tat argument obscured how he and his fellow Senate
Republicans had weaponized the use of the filibuster during Obama’s presidency.
From the time that cloture rules were introduced into the Senate in 1917 until
the end of Ronald Reagan’s presidency, the filibuster was deployed 385 times.
During Obama’s presidency, Senate Republicans launched over 500 filibusters,
many of them to block Obama’s appointments to the federal bench. Reid’s use of
the nuclear option was something of a desperate response to Republican
obstructionism – or, more precisely, nullification. When it came to shutting
down a Democratic filibuster of Gorsuch’s confirmation, McConnell then used the
very poisoned conditions that he had helped create to justify a yet more
extreme act of partisanship.
Adding two additional justices to court’s
ranks would simply counterbalance the abuse of constitutional rules
True, it
isn’t a foregone conclusion that McConnell will be successful in his rush to
replace Justice Ginsburg. The vetting and confirmation process can take weeks,
even months. At present, McConnell presides over 53 Republican seats, and
certain defections are possible, if not likely. Senator Susan Collins, a Maine
Republican trailing in her re-election bid, has expressed reservations about a
rushed, last-minute confirmation. Senator Lisa Murkowski of Alaska has already
gone on record as opposing the confirmation of a new justice before the
election.
Yet the
deeper question is not whether McConnell will be successful. It is how
Democrats should respond if he is. The answer, of course, will turn on the
results of the coming election. But should Democrats capture the White House
and the Senate, they need to bear in mind that it is Congress and not the
Constitution that sets the size of the supreme court. In 1937, Franklin
Roosevelt, frustrated by a hidebound supreme court that had struck down New
Deal laws, proposed expanding the number of justices to fifteen. That court-packing
plan was rightly rejected by Congress as a heavy-handed attempt to manipulate
the court’s composition to generate specific political outcomes.
A new
Democratic court-packing plan in 2021 would be prompted by a very different
logic. Adding two additional justices to court’s ranks would simply
counterbalance the abuse of constitutional rules that enabled the confirmation
of Gorsuch and RBG’s replacement. Such an act would be a justified gesture of
constitutional restoration, not usurpation. So much for Mitch McConnell’s
chuckling.
Lawrence
Douglas is the James J Grosfeld professor of law, jurisprudence and social
thought at Amherst College, Massachusetts. He is the author of Will He Go?
Trump and the Looming Election Meltdown in 2020. He is also a contributing
opinion writer for the Guardian US
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