Justice Ruth Bader Ginsburg has once again been in the hospital. While her prognosis seems good, questions about the aging justice’s health do lead to questions about what would happen if she had to be replaced before the Supreme Court’s term ends in October or before the presidential election is decided.
For conservatives, the first reaction would be that Donald Trump would have the opportunity to replace Justice Ginsburg with a constructionist justice similar to his appointments of Neil Gorsuch and Brett Kavanaugh. However, the reality would not be so simple.
While the sitting president has the right to fill vacancies on the Supreme Court, any attempt to replace Justice Ginsburg six months before an election would invoke memories of Merrick Garland. In 2016, President Obama appointed Garland to fill the seat of Antonin Scalia, but Senate Majority Leader Mitch McConnell decided not to act on the appointment. In the end, the gamble paid off. Trump won the election and appointed Neil Gorsuch to the seat.
There is one very important difference between Barack Obama in 2016 and Donald Trump in 2020. Since Trump’s party controls the Senate, his nomination would be looked upon more favorably than Obama’s was.
However, Trump’s nominee would still face problems. One obvious obstacle is the antipathy that any Republican-nominated replacement for Ginsburg, a liberal icon, would receive. This is especially true since an additonal constructionist on the Court would tip the balance away from the left. (It would not necessarily tip it toward the Republicans since constructionists tend to base decisions on the law and not on partisan beliefs.)
Another hurdle would be the difficulty of holding confirmation hearings in the midst of a campaign in the midst of a recession in the midst of a pandemic. There would need to be sufficient time for senators to become familiar with the nominee’s background and judicial history.
With the Coronavirus pandemic raging, it might also be necessary to hold virtual hearings. The Supreme Court recently heard arguments via the internet, but such a groundbreaking technical achievement would take time to set up and there would be a good possibility of delays due to technical difficulties. The Senate would probably have to approve groundrules for the use of internet debate.
Per the Congressional Research Service, for nominations between 1967 and 2017, it took a median of 27 days from appointment to the first public hearing. The median time for final action on nominees by the Senate or the president was 67 days, more than two months. The fastest successful confirmation in recent years was John Roberts, who was confirmed in 23 days.
Without the filibuster, Democrats would have no hope of voting down a Trump appointment without Republican help. They could, however, delay and obfuscate as they did in the Kavanaugh nomination. With the stakes so high, the fight would be brutal and dirty.
As the election approaches, a confirmation will be harder and harder to pull off. Senators of both parties will want to hit the campaign trail rather than sitting through hearings on a hot-button issue in Washington. At the moment, it looks as though many Republican Senate seats will be vulnerable so Mitch McConnell will want those senators on the road to defend the Republican majority.
After the election, there would be plenty of time for a confirmation but there is the risk that a lame-duck Senate would not confirm an appointee, especially if Donald Trump is a lame-duck president or if control of the Senate changes hands. It would be difficult to justify ignoring the outcome of the election and pressing forward with a nomination by an unpopular president who might well be on his way out the door.
While many Republicans would have no ethical qualms about confirming a Trump appointee under those conditions, even coming only four years after Merrick Garland and the notion that voters should decide the fate of the open Supreme Court seat, there is a good chance that some would. It would only take the defection of three Republicans to scuttle the nomination and those who had just been fired, thanks in large part to Donald Trump, might not be in the mood to do the president or the party any favors. Those who want the possibility of a future in politics might think twice before crossing the voters who had just shown them the door.
If Mitch McConnell could corral his caucus and keep the confirmation short, a justice could be confirmed but what then? If Republicans replace Ginsburg with a Trump-appointee, the left would be apoplectic. If this happens before the election, the resulting anger may fuel Democratic engagement and lead to a blue wave election.
A similar effect was seen in 2018 when the treatment of Brett Kavanaugh was credited with getting Republican voters fired up. The Republican anger didn’t stop that year’s blue wave, but it did blunt the losses in the Senate.
A second possibility is that Democrats might be emboldened to use an FDR-era strategy to overcome the conservative advantage on the Court. Several Democratic presidential candidates have already endorsed a “court-packing” plan that would expand the Supreme Court to as many as 15 seats. The new justices would, of course, be appointed by a Democratic president and confirmed by a Democratic Senate if things go according to their plan.
While the Constitution establishes the Supreme Court, it does not specify how many justices make up the Court. Congress established the number of justices by legislation. There were originally six justices but the number has been changed several times. The present configuration of nine justices has been in place since 1869. In 1937, Franklin Roosevelt tried to overcome a Supreme Court hostile to his New Deal by mandating retirements for justices and adding new seats.
Roosevelt’s plan was unpopular in both parties and failed, but some Democrats are ready to revive the strategy. They see the failure to confirm Garland as well as numerous other Obama appointees to lower courts as a departure from congressional norms that gave Republicans an unfair advantage. Although the Republican strategy was not illegal, if the truth were known, conservatives would feel the same way if the roles were reversed.
Even though many Republicans no doubt hope that Donald Trump will be able to replace Justice Ginsburg with a judge of his own choosing, it seems that the country would be better served by having the debate over a new justice in calmer times and with cooler heads. While I disagree with many of Justice Ginsburg’s decisions, I do wish her good health… for the good of the country.