For the Sake of the Constitution, and the Country, Fill Ginsburg’s Seat Quickly

Justice Ruth Bader Ginsburg died Friday at the age of 87. Her passing was not unexpected. On the contrary, her steadily worsening condition over the past several years left her increasingly incapacitated. After Donald Trump’s election in 2016, many on the Left expressed dismay that she chose to stay on the court rather than resign and let President Obama nominate her replacement. 

Liberals feared she would die during Trump’s presidency, and her seat—which they regard almost as their sacrosanct property—would be in the hands of a Republican president and Republican-controlled Senate. 

That fear proved prescient. But few expected the moment would come so close to the November election. 

Ginsburg made a political calculation. Even on her deathbed, she was acutely aware of the political implications of her passing: she issued a statement expressing her “fervent wish” that she will “not be replaced until a new president is installed.” Given that she herself put the country in this difficult position, we should not allow our thinking to be clouded by any false sentimentality about her death. Rest in peace, Justice Ginsburg. 

Now let’s move on.

Democrats may assume that Ginsburg’s dying wish is a given. And they will pretend that it is some time-honored precedent. With the election only six weeks away, they assume there just won’t be enough time to act. 

If Trump loses in November, it would be politically impossible to nominate a replacement during his remaining lame-duck months in office. If he wins, much would depend on what happens with the elections for the Senate, which has the constitutional authority to approve any nominations to the Supreme Court under that body’s “advice and consent” power. 

Presidential elections should not be about the Supreme Court. This is one of the unhealthiest features of our dysfunctional government.

Republicans currently hold a slim majority of 53 seats in the Senate, with 45 Democrats and two Independents (Bernie Sanders of Vermont and Angus King of Maine—both of whom “caucus” and vote with the Democrats). In November, 23 Republicans and 12 Democrats will be on the ballot fighting to keep their seats. These considerations make any decisive action by the Republicans even more challenging.

But despite the apparent difficulty of doing so, the president should nominate, and Senate Republicans should confirm, a new Supreme Court Justice before the election on November 3.

It’s doable, and it would be the best outcome for the common good of the country. 

Here’s why:

Although it might seem hyper-partisan, this course could actually reduce the temperature in the current white-hot political environment. President Trump has the unquestioned authority to nominate, and the Senate has unquestioned authority to confirm a new justice. And until November, no one is a lame duck. 

Of course, getting through a hearing in the Senate Judiciary Committee, followed by a full vote of the Senate, in six weeks would be moving quickly by modern standards. But that simply reflects how partisan the process has become, which is precisely the problem. 

Democrats may have burned their bridges with their shameful tactics against Justice Brett Kavanaugh in 2018. They dragged out the confirmation for three months with a seemingly endless series of unfounded slanders and sleazy innuendo. They are in a bad position now to object to a quick and dignified vote. 

In the early days of the republic, justices were confirmed within a matter of days. Even as recently as the Lyndon Johnson Administration in 1965, the Senate confirmed Johnson’s nominee, Abe Fortas, within two weeks. There is no legitimate reason the process needs to take any longer now. 

Taking this issue off the table by filling the Supreme Court seat before the election would ensure that people are not going to the polls to vote, indirectly, for a Supreme Court justice. That’s a terrible distortion of how our federal government is supposed to operate; and it puts an unreasonable burden and expectation on the voters. 

Presidential elections should not be about the Supreme Court. This is one of the unhealthiest features of our dysfunctional government. 

The Supreme Court was intended by the Founders to be a nonpartisan judicial authority that decides cases of federal law. It was never intended to adjudicate our most contentious policy issues. Our democratically elected Congress is supposed to do that. It is their job to make the laws, with the signature or veto of our democratically elected president. It is a travesty that we now assume that nine judges will hand down, from on high, their pronouncements about our most urgent political questions. 

In the words of the Federalist, the Supreme Court should have “neither force nor will.”

Getting this done won’t be easy for Republican Senate leader Mitch McConnell (R-Ky.). The “Old Unreliables,” like Mitt Romney (R-Utah) and Lisa Murkowski (R-Alaska), certainly will threaten to vote against a quick replacement. Well, OK. Let’s find out. 

The vote surely will be close. In the event of a tie, Vice President Mike Pence would cast the tie-breaking vote. That would also send liberals into paroxysms of rage. But it’s how the process is supposed to work. In addition, just in case the presidential election results are disputed, we must have a full Supreme Court, should there be any disputes for the court to decide. 

Of course, filling the seat quickly—and overruling what certainly will be loud and even hysterical objections by Senate Democrats—may leave some voters incensed, and they will take their anger out at the polls. 

But many (maybe a lot more) Americans would feel relieved to have the question settled so that they can focus on what they are supposed to be deciding: whether President Trump or Joe Biden will make a better president. 

That’s what voters can and should be thinking about in November; not who may or may not get onto the Supreme Court.

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About Glenn Ellmers

Glenn Ellmers' new book, The Narrow Passage: Plato, Foucault, and the Possibility of Political Philosophy, will be published by Encounter this summer. He is the author of The Soul of Politics: Harry V. Jaffa and the Fight for America and the Salvatori Research Fellow of the American Founding at the Claremont Institute. He is also a fellow of the Center for American Greatnsss.

Photo: Nikki Kahn/The Washington Post

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