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Filling the SCOTUS Seat Isn’t an Option, It’s an Obligation
With Ruth Bader Ginsburg’s death and a newly vacant Supreme Court seat, the political madness of 2020 got even madder. But this moment is precisely why so many Republicans voted for Donald Trump despite their misgivings. A conservative majority on SCOTUS has been a signature goal of the party base going back to Ronald Reagan’s presidency. Now, 40 years later, the opportunity is finally here.
To quote Margaret Thatcher, this is no time to go wobbly. As expected, many are.
The center-right’s appetite for catering to the Democrat base instead of their own is insatiable. In reaction, GOP voters launched the Tea Party movement. When that fizzled, they elected Trump. Many Republicans still haven’t learned this lesson and want to surrender before any battle begins.
At The Bulwark, Jonathan V. Last oddly casts this moment as a “political crisis,” which it most certainly is not. Justice Ginsburg’s passing is a sad event, as is anyone’s death, but it was as inevitable as every other Supreme Court vacancy. We’ve been through this more than 100 times before.
Yet Last believes RBG’s mortality is an unexpected “black swan” event. His solution is to toss aside the simple Constitutional process and replace it with a complex backroom deal:
There are only a handful of ways out of this trap and all of them require the prudential coordination of elites. Which is … not something we have seen a great deal of in the last, say, generation of American life.
Nearly zero voters, left or right, want to be governed by the “prudential coordination of elites.” In fact, the Constitution doesn’t mention “prudential,” “coordination,” or “elites.” It does state that the President is obligated to nominate a jurist and the Senate to provide advice and consent.
Why invent some novel aristocratic contraption when our foundational document provides a simple path forward? These are the rules every elected official — left, right, and center — agreed to uphold since our founding.
One expects knocking knees at The Bulwark, but the demand for some extraconstitutional haggling is spreading.
Jonah Goldberg and David French, two conservatives for whom I have great respect, recommend a different type of deal with Senate Democrats. I’ll let French explain:
First, Trump makes his pick.
Second, the Senate applies the Schumer principle and gives the nominee a hearing. This will have the benefit of giving the American people a more-complete picture of the qualifications and philosophy of the nominee and thus the stakes of the presidential election.
Third, the Senate then applies the Graham/Rubio/Cruz rule and does not vote before the election. If Trump wins, they then vote on the nominee.
But what if Trump loses? What principle comes into play? Joe Biden’s own words provide the guide.
In the October 2019 Democratic debate, Joe Biden clearly expressed his opposition to court-packing. “I’m not prepared to go on and try to pack the court,” he said, “because we’ll live to rue that day.” He continued, “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.”
Goldberg, offering similar advice, adds some context in his LA Times column:
Even before Justice Ginsburg’s demise, Democratic support was building not just for packing the Supreme Court by increasing the number of justices (which Ginsburg opposed), but also for D.C. and Puerto Rican statehood and abolition of the legislative filibuster. Now Democrats are all but vowing to go through with expanding the court in response to a rushed replacement for Ginsburg.
What will be the GOP’s argument against such schemes?
…Moreover, merely on the level of realpolitik, abandoning all considerations other than what you can get away with amounts to preemptive disarmament for the wars to come. The pernicious logic of apocalyptic politics works on the assumption that the long term doesn’t matter. But the long term always becomes now eventually.
Making a too-clever-by-half deal instead of simply following the Constitution is also a type of “preemptive disarmament for the wars to come.” The GOP has the White House and the Senate, while the Democrats have nothing. If the Packers are leading 42-3, they don’t give two touchdowns to the Vikings if they promise to be nice to them in the next game.
Any deal is especially suspect given the Senate Democrats’ abysmal track record on upholding the slightest of norms. A party willing to portray the dullest nominee in SCOTUS history as a high-school drug lord and gang-rapist has no interest in comity or fair play.
French and Goldberg’s deal is better than Last’s but still attempts to solve a problem that doesn’t exist. Trump and McConnell hold all the cards; the left has only screaming.
Democrats high and low have already promised to pack the court, create new states, and abolish the electoral college. They have allowed their constituents to create mayhem, attack citizens, destroy businesses, and burn buildings in their cities for three and a half months. This is who they were before RBG died and they will only radicalize further as we move toward the election.
The Republican base has set everything in place for a conservative Supreme Court. It is the party’s obligation to deliver it to them.
Forget “prudential coordination of elites,” it’s time at last for “We the People.”
Published in Law, Politics
I have no respect for either. Long game? When, exactly to we fight according to Jonah?
In the words of Dirty Harry, “Feeling Lucky?”
Let’s talk about the law of unintended consequences of jamming through the nomination regardless of the consequences. In November 2013, Harry Reid used the nuclear option to stop filibusters for appointments, other than the Supreme Court. In 2017, Mitch McConnell expanded that to the Supreme Court and has been busy ramming through federal judges, which is a good thing in my view.
I predict that if Mitch forces a confirmation vote before the election, the following three things will happen.
First, Trump will be defeated. The strongest reason to keep Trump was to replace Ginsberg on the Supreme Court, and Breyer is a spry 82 year old. With no more seats to fill, why keep the Trump albatross?
Second, Senate hypocrites like Lindsey Graham, and Steve Daines will be defeated. Their pious words in 2016 will be thrown in their faces repeatedly and justifiably. Act Blue received over $100 million in donations after McConnell made his play.
Third, the Dems will use the nuclear option on the legislative filibuster. The Supreme Court will be expanded to 11 justices, and DC and Puerto Rico will become new states. The Dems will also increase the Federal Judiciary by 30% as happened when Jimmy Carter was President.
Mark my words, this will be the largest miscalculation since Harry Reid nuked the filibuster on appointments back in 2014.
Mark my words:
You are are enemy. You want Biden to win, you want the Democrats to control the Senate, You are calling for it, Gary. You are not for the Republican Party or being a conservative. You proudly vote for and supports Democrats running on a socialist platform.
This is what you want, Gary. You want Biden to pack the court. That is what you are voting for. You want them to wipe out the 2nd Amendment. That is what you are voting for. You want them to destroy the Electoral College and the Senate. That is what you are voting for.
How dare you presume to tell the rest of use how to make strategy. You are rooting, openly, and giving money to the enemy.
That is treason, Gary. Treason to the Republican party. Treason to conservatism. Aid and comfort to the enemy.
I find you more disgusting that the Democrats because they at least don’t pretend to be fans of Reagan.
There is one McConnell offer to the Dems that I support:
Which Gary wants, because he wants them to win.
Gary wants the Dems to win, and win big, so Oranage man can lose.
Then, and only then, there will be some magic return of the GOP.
Appointing judges interested in upholding the document that, among other things, authorizes their existence as a court, would seem to be a no-brainer.
We have been promised justices that would do just that; that was the reason that I have been holding my nose and voting for McCain, then Romney. Those who for whatever reason imagine themselves “the elite” seem to fail on this one rather simple task.
It’s time to deliver.
I already posted this contrast-and-compare on another thread, but Gary, do you believe Chuck Schumer (and Nancy Pelosi) will more honorable in keeping their word to Donald Trump and Mitch McConnell is 2020 than George Mitchell (and Tom Foley) were in 1990 to George H.W. Bush and Bob Dole, when they convinced Bush to go back on his “No new taxes” pledge in exchange for Democrats’ promise to cut the federal budget, which Mitchell never followed through on?
I think that the norms are clearly to wait until after the election.
I am okay with making a nomination, just not having the vote yet. If Trump wins, hold the vote, even if we lose the Senate.
Both Joe Manchin and Krysten Sinema are maybes on the nuclear option, and the Dems would need a 53-47 majority to get past that. But playing hardball now would encourage them to go nuclear, and would greatly increase the odds of Dems having a 53 or more majority.
Except, Gary, they are not.
History does not support that at all. Just your ignorance talking.
How Sad and Predictable.
Gary, are you really comfortable with Reagan as your avatar? It doesn’t seem to suit you, somehow.
I don’t understand the “elite” Republicans who are so eager to enter surrender negotiations. The people spoke in 2016, electing Trump, and in 2018, increasing the Rep Senate majority. 2018 was, in no small part, a response to the shameful Kavanaugh hearings. Four incumbent Dem senators lost that year.
I acknowledge that Collins and McSalley have tough sledding ahead, but Jones of Alabama will almost certainly lose. Montana may be another potential takeaway. Voters didn’t like the process last time. They probably won’t like it this time.
Two final observations.
First, there are 43 days until the election and, in 2020, that’s about 43 news cycles. Anything can and probably will happen until then. Fasten your seatbelts, please.
Second, no matter how many times Lucy promised Charlie Brown, she always pulled the football away. Only make deals that both sides will keep.
The other argument I’m seeing from the “Wait Until 2021” conservatives is that Democrats in non-deep Blue areas won’t vote for court-packing if it was brought before them next year by Schumer and Pelosi and that Biden wouldn’t sign it, because he said he wouldn’t sign it.
To have faith in this you have to assume:
1.) Joe is more steadfast about the court-packing thing than when he said he
wouldwon’twouldwon’tban fracking if elected president.2.) Joe’s going to have the mental capabilities to stand up to the far left wing of his party;
3.) Joe is going to be president through 1/20/25, and Kamala won’t be in his place;
4.) The current group of House and Senate Democrats in swing districts and states are more steadfast to stand up to Nancy Pelosi and Chuck Shumer against voting for any court-packing scheme than House and Senate Democrats were in 2009-10 in standing up to Pelosi and Harry Reid in voting against Obamacare.
5.) The current group of House and Senate Democrats in swing districts and states are more steadfast to stand up to Nancy Pelosi and Chuck Shumer against voting for any court-packing scheme than House and Senate Democrats were in 1993-94 in standing up to Tom Foley and George Mitchell in voting against the Clinton tax increases.
That’s a lot of assumptions for a political party and its leadership, which just a year ago couldn’t bear not getting what they wanted with the Mueller report and spent the next six months impeaching Trump, only to totally forget about it by the time their convention rolled around six months after that. The current Democratic Party is driven by angry emotions, and if that anger is channeled towards the idea of packing the Supreme Court, that’s what they’re going to try and do.
My only regret is that I have only one “like” to give for this masterful comment!
Why wouldn’t I keep the Greatest President of the Twentieth Century as my avatar?
One of my great sadnesses this year is that I cannot visit the Reagan Presidential Library at this toile. Damn.
Nominate and vote before election. We’ll need another, hopefully extremely Conservative/Originalist Justice to vote on the inevitable court challenges. Don’t trust Roberts to do right thing at all.
While we’re making ‘Godfather II’ references, when did Jonah become Fredo? ‘He’s smart! He wants respect!’ I’ve got a fishing boat with your name on it.
Come on man! This attack on Jonah is beneath you.
Because he was a conservative. In fact at the time the Bush wing of the party (or Rockefeller wing, if you prefer) loathed him to start. They made accommodation with him only when they realized that they weren’t going to beat him. You are more of a Willard Romney Republican. He prefers to be called Mitt Romney. I prefer to call him a feckless, opportunistic, backstabbing, weasel-faced fink. So we compromise.
Just a question for Mr. Robbins, do you know any Biden supporters who are sitting back waiting to see what McConnell or Trump are going to do regarding the Court in order to make their voting decision? In other words, “Well, he showed restraint, so I’m changing my vote to Trump.” I’m guessing that not only do you not know one, but you, yourself, wouldn’t.
( I should have linked to a prior comment to guarantee viewing, but posted too quickly. Apologies.)
Marked.
All the stuff you mention is, and has been, bastardization of our Constitution.
I will say you are the one who is miscalculating. Sir.
Okay, I think I have a new deal that the Dems and the Never Trumps can agree on. How about we ask Trump to nominate a liberal, say AOC, to replace RBG. But then we make Biden promise, and I mean a Cross-My-Heart-Hope To-Die Promise, that when Thomas retires, he’ll nominate a black conservative. Will they like the deal? More important, will they like us then?
What do you think, @garyrobbins?
No. You don’t think.
You know how 2020 is, what if another seat opens on the SCOTUS before November 10?
There is no Crystal Ball.
Play the Game with the cards you got. Now.
While I disagree with them here & there, I like all three of those guys–JV Last, Jonah and D. French. I’m not out of sympathy with their concerns, particularly David’s, about “disunion”. I guess one way to preserve the union would be to truckle endlessly to whatever the Left demands and surrender strategic advantages for magic beans: French, particularly in his recent Time article, seems to be advocating that approach.
How about this: Fill the seat. Win elections.
In what universe will Liberals be less insatiable if the Republicans politely demur to fill a Supreme Court vacancy? Why would Democrats abide by the terms of a “deal” to not go berserk if they find themselves in the majority? Scout’s honor?
So in regards to Dave and Jonah and JVL, you’ve gotta ask: What are these cats smoking? Put the pipe down, fellas.
Fill the seat, while you can.
Professor Epstein, I am saddened by your attitude of fear in this regard.
The way to break the chain of political poison in the judiciary appointments is to seat the judiciary as a matter of course, not preference or politics.
He’s a lamb wearing wolf’s clothing.
No. I am a Reagan Republican. I voted for the Bushes, Romney, McCain, and Dole, with Reagan was and is “the real deal.”
Well today two Republican women happily took t-shirts that are Anti-Trump and/or Pro-Biden. (They had been talking about how Reagan lowered the marginal tax rate from 50% and the passive investment marginal rate from 70%.
No. If Trump wins, vote on his nominee. Have the election be about ACB or Barbara Logoa!
So the answer to the question is no. Thanks for playing, but I’d move on to the next “never Trump” argument. Just like the ever occurring bombshells, it’ll be along any day now.