The death of Ruth Bader Ginsburg has created a vacuum in the Supreme Court that must be filled. The essential question regarding filling the vacancy is when to nominate and confirm a new justice, particularly whether or not to wait until politicians elected in November are inaugurated in January. The Republican Party has supported ap pointing someone before the inauguration. This would mean the Republicans could utilize their control of both the presidency and the Senate to push a conservative justice through and increase their majority to 6-3 in the Supreme Court.
Many commentators are pointing out the GOP’s hypocrisy, considering the Senate blocaded Merrick Garland’s appointment in 2016. Senate Republican leader McConnell blocked the appointment due to the opening occurring in an election year. Republicans’ reasoning this time is that, even though we are also in an election year, the Democrats only controlled the presidency during Garland’s appointment, whereas now Republicans have both the presidency and the Senate.
This is only a cover, of course. They can and do believe they will suffer no consequences. They blocked Merrick Garland’s appointment in order to appoint a conservative judge, Neil Gorsuch, and now they are rushing a nomination now in order to get another conservative justice.
Is the view taken by the Republicans hypocritical? Of course. However, it should come as no surprise, nor should it even be discouraged. The Republicans are not planning to violate the Constitutional process of confirming new Justices. They are playing by the lawful rules of the process. Many liberal pundits still feel outraged at this blatant hypocrisy from some outdated belief that the parties should have some sort of mutual respect. The idea that the two parties should have some sort of code of honor is absolutely ridiculous. The decisions made by the most powerful country in the world have global importance for the lives of billions of people. The Democrats should never hold back action that is entirely legal if it could boost their power or influence, and they should expect no better from the Republicans.
In response to the current crisis, the Democrats have been somewhat divided on their planned actions. One possible threat they could make is to increase the size of the Supreme Court if the Republicans rush the nomination of a new justice. This would allow the Democrats to pack the Court with Democratice justices, assuming they win the presidency and Senate in the November election. Former Obama Chief of Staff Rahm Emanuel has discouraged this line of actions, preferring instead for Democrats to try to appeal to moderate Republicans in the Senate. Presidential candidate Joe Biden, who didn’t support expanding the Court during his campaign, has been a little more reluctant, not offering any real opinion on the matter.
This kind of threat, accompanied by a genuine intent to follow through on it, is what the situation requires. Politics is ultimately a game of leveraging power, and the threat of a Democratic Senate and Presidency is the greatest power the Democrats have right now. Senate minority leader Chuck Schumer has hinted that this is an option, saying “nothing is off the table.” Plans like Rahm Emanuel’s will prove entirely fruitless; even so-called moderates like Mitt Romney have explicitly stated they will proceed with a rushed confirmation.
The threat of a huge conservative majority on the Supreme Court is hard to overstate, especially in the near future. If a legal crisis does emerge around the legitimacy of mail-in ballots, however dubious, it’s easy to see how the Court could decide the entire election. The Supreme Court already decided an election 20 years ago. Both Roe v. Wade and the Affordable Care Act could face elimination if this huge majority is put in place. The result of this decision has immense importance, thus Democrats’ strategy should not worry about moralistic posturing. They must utilize all possible leverage and power they have.
