Confirm a Justice Now

The instant Justice Ruth Bader Ginsburg’s passing was announced, the battle lines were drawn. Or, more accurately, one side girded for battle, while Republicans clucked with confusion about what to do next.

Which should be no surprise. If Republicans are good at anything, it’s finding “principled” reasons to betray their constituents and contradict their much vaunted philosophy. President Trump, naturally, has sounded strong, as, to his credit, has Senator Mitch McConnell (R-Ky.). But the majority leader has to manage a fractious caucus and a thin margin. Many of his members either will be looking for excuses not to vote, or for a reason to vote no, or (worse) will be persuadable by sophistical arguments as to why stabbing their president, their voters, and their country in the back is “the right thing to do.”

Herewith, if any of them are listening, are some reasons not to take those paths.

The Alleged 2016 Precedent

All Democrats and a few Republicans are already saying that McConnell’s refusal to advance the nomination of Merrick Garland in 2016 set an inviolable precedent that the GOP would be hypocrites to overturn. But there are differences between 2016 and 2020.

First, Barack Obama was at the end of his constitutionally limited two terms. The 2016 contest, therefore, was an “open-seat” election. Voters are much more likely to hand the presidency to the other party in an open-seat election; they have done so in the last three straight, whereas no incumbent has lost since 1992. A president at the end of his second term is a lame duck; it makes some sense in that circumstance to give a new president, with a new mandate, the chance to shape the court rather than let the outgoing has-been, who’s already had eight years to do as he will, one last shot at a legacy.

President Trump was almost a shoo-in for reelection before the lockdowns crushed the economy, and he remains a strong bet. He’s still immensely popular with his base and his approval ratings are the highest of his presidency—and higher than many of his predecessors’ at the same point in his term. He is anything but a lame duck. He deserves a chance to exercise his constitutionally enumerated powers and deliver for his voters.

Second, in 2016, the Senate was controlled by Republicans. That remains the case today. But four years ago, the president was a Democrat. The so-called Biden Rule, which McConnell invoked in 2016, and named after a 1992 floor speech by current Democratic nominee but then-Senator Joe Biden, holds that a justice should not be confirmed in a presidential election year when, in Biden’s words, “divided government” reflects a lack of a “nationwide consensus” on which party’s judicial philosophy should carry the day. That circumstance obviously does not prevail today. 

Of course, for all the howling about McConnell’s alleged hypocrisy, we have heard not a peep about Biden happily sidestepping his own rule in 2016. 

Remember, too, that senators no less than presidents have constitutionally enumerated powers and popular mandates. They owe loyalty to their voters no less than did President Obama or does President Trump. Republican voters elect Republican senators in very large part because they expect those senators to shape the courts in a conservative direction. Doing so can mean blocking the elevation of liberal justices no less than ensuring the confirmation of conservatives. 

In either case, Republicans are both exercising their lawful powers and delivering for their constituents—which is exactly what they are elected to do

The fact that Mitch McConnell—no one’s idea of an ideological firebrand—understands this while many “principled conservatives” do not should prompt the latter rethink their squeamishness.

The two most recent, and therefore currently binding, expressions of the will of the people were the elections of 2016 and 2018. The former produced a Republican president and reaffirmed Republican control of the Senate, in place since the election of 2014. The latter reaffirmed Republican control of the Senate yet again. The will of the people, therefore, as expressed through elections—the only legitimate basis for the exercise of political power in our constitutional system—is that conservative justices be elevated to the Supreme Court.

One-Way “Precedents”

Alleged “precedents” such as the Garland nomination, in any case, seem only to apply to us. The Democrats violate precedents at will when doing so suits their interests, and then attack us when we follow their most recent precedent. 

It wasn’t Republicans who nuked the filibuster for judicial nominees. Can you recall a single instance of Republicans treating a nominee as disgracefully as the Democrats treated Robert Bork, Clarence Thomas, or Brett Kavanaugh? I can’t. Yet they constantly and sanctimoniously insist that the process is sacrosanct while scolding Republicans to obey every past procedural and conventional nicety that the Democrats have already torched.

Republicans mostly go along obediently. The Democrats nearly always vote in lockstep against any Republican judicial nominee; Republicans routinely break ranks and vote for Democratic nominees. A phrase I’ve heard to describe this faux-magnanimity is “beautiful losers,” though there’s nothing beautiful about it.

Does anyone for a second think, were the shoe on the other foot, the Democrats would hesitate to confirm their pick? To ask is to laugh.

The call to respect “norms” rings hollow after four years of the Left, the leftist media, the courts, and the administrative state all breaking norms, to the point of threatening if they don’t get their way on this vacancy, even more systemic change: D.C. and Puerto Rico statehood (four more Democratic senators, forever), abolishing the Electoral College (New York, California, Chicago, and Philadelphia electing the president, forever), and packing the Supreme Court.

Stopping Election Chaos

This argument is not original but bears repeating. Democrats have assured the American people that, unless Joe Biden wins in a landslide, they will litigate the living hell out of the 2020 election. One likely outcome, given the potentially huge number of lawsuits and the slow and cumbersome nature of the legal process, is that, in order to have a president by January 21, the Supreme Court will need to intervene as it did in December 2000.

In that case, what happens if the court splits 4-4? Who decides? There does not appear to be a clear constitutional mechanism. An unresolved Electoral College vote, constitutionally, goes to the House. But what if, because of legal chaos, electors are not designated? Then what? Decide the election in the streets?

Democrats appear to relish the thought. Some have openly called for a “street fight” to follow the chaos they deliberately intend to unleash in the courts. To say nothing of the fact that Republicans have no hope whatsoever of winning a “street fight” against the Democrats’ combined Antifa-Black Lives Matter militia and the protection and leniency that militia receives from law enforcement and Soros-funded prosecutors, a “street fight” settling an American presidential election should be the last thing any decent citizen of either party would want. As would any un- or extra-constitutional means for settling such an election.

What Is Political Power For?

Republican senators should ask themselves: why are they senators? Why did they run for office? What, if anything, do they hope to achieve once there?

Some no doubt are time-servers who like the perks and hope to get rich after leaving office. But some, even most, surely got into the game to do something. Is there a bigger something than confirming a constitutionalist Supreme Court justice to a closely divided court, when at least two of the “conservative” justices are drifting left, on the eve of the most important election in living memory? If you can’t rise to this occasion, why are you there? And why should your constituents send you back?

The Democrats know what political power is for: to enact your side’s agenda. They and their media allies successfully gaslight Republicans into fearing that exercising political power is “partisan” and therefore illegitimate—but only when Republicans do it. Democrats themselves have no hesitation.

Nor should they. The whole point of our democratic-republican system is for voters to elect people they perceive to be on their side, who favor their own approach to common problems, and who when given the opportunity then enact that agenda. That, in essence, is democracy. That is what Republican senators are there to do. Let them do it.

The Politics Are on Our Side

Not a single Republican should pay a moment’s heed to Democratic crocodile tears about the unseemliness of political considerations intruding into such grave matters. Whom to nominate to the Supreme Court, and when, are fundamentally political questions. In our system, political questions are supposed to be decided politically.

Yet those worried that the politics play against our party’s interests are wrong. Nothing energizes the Republican base like a Supreme Court fight. Nothing brings out Democratic ugliness and insanity like a Supreme Court fight. Few issues, if any, unite the Republican Party’s various factions—from the country-clubbers to the MAGA diehards—quite as effectively as judges.

I know some senators are in tough reelection fights this year. I will not presume to claim to understand their state electorates better than they do. I ask of them only two things. First, consider the possibility that, in this extraordinary year, the views of your constituents aren’t what they used to be. They may well be more open than you think to confirming a Supreme Court justice right now.

Second, the worst that could result from doing the right thing is that you aren’t reelected. Is that so bad? Aren’t you there to cast the tough votes? And consider the upside: doing the right thing for your country and party, and then paying a political price for it, will make you a hero whose courage will be long-remembered. Is there a finer legacy?

A Show of Strength in the Face of Chaos

This year has amply demonstrated the fragility of American society, the weakness of our political institutions, and the strength and ferocity of the Left. The latter has made it quite plain that they want to tear down the entire edifice of our nation, burn our cities, topple and desecrate our monuments, destroy law and order, shred the Constitution, and transform the country into a permanent leftist one-party state. One more justice on the court won’t necessarily prevent all that—but one more conservative sure would help!

The Republican base is fired up now, but only months ago was demoralized in the face of constant rioting, mayhem and seemingly purposeful government inaction. Should Republican senators, who have the power to make this appointment happen, not exercise that power, Republican voters are likely to conclude their government, and their country, has been lost to them. And, in all likelihood, it will have been.

If on the other hand Republican senators stick together, get behind and elevate a qualified nominee to the court, not just Republicans but moderates, independents and apoliticals alike are likely to appreciate a show of strength in service to our nation and its constitutional order.

To borrow from Margaret Thatcher, now is no time to go wobbly.

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About Michael Anton

Michael Anton is a lecturer and research fellow at Hillsdale College, a senior fellow at the Claremont Institute, and a former national security official in the Trump Administration. He formerly wrote under the pseudonym Publius Decius Mus when he was a senior editor of American Greatness. He is the author most recently of The Stakes: America at the Point of No Return.

Photo: Samuel Corum/Getty Images

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