The untimely (if not unexpected) death of Justice Ruth Bader Ginsburg would seem, on its surface, to have upended what appears to be a topsy-turvy presidential election.
U.S. Supreme Court vacancies are, indeed, rare and random – in his two terms as president, Barack Obama got to fill only two seats; Donald Trump has gotten to fill at least two in just one term. The problem, though, is not that a sudden Supreme Court vacancy will completely change the race, but that it’s unlikely to have much of an effect on the election at all.
Barring the swift confirmation of a nominee – an exceedingly unlikely event in the current polarized climate – this will be the second straight presidential election to occur under the cloud of a Supreme Court vacancy. Four years ago, that worked distinctly to Trump’s advantage, as it rallied many conservatives who had doubts about him to his side. This cycle, though, it won’t have that same effect: Those people who supported him for his judicial picks are largely still with him. Indeed, they’re a major, core part of his base.
The same is true on the other side: Liberals who want to stop conservatives from getting a majority on the court were already committed to Joe Biden. He might not have been their first (or second) choice, but they were hardly going to suddenly vote for Trump. The political polarization gripping the country has enveloped not only actual Supreme Court vacancies, but the mere potential of them as well. Both parties already treat it as a major motivating factor for the presidential race and every U.S. Senate race, and that’s a shame.
That polarization turns every vacancy into a zero-sum game, which explains why so many Republicans – not only U.S. senators, but voters as well – are perfectly willing to abandon their argument from four years ago that a nomination shouldn’t proceed during an election year. At the time, many Democrats chided Republicans to do their job, or even claimed that it was unconstitutional for them to ignore the nomination of Merrick Garland. It wasn’t, of course: Nowhere in the Constitution is there a requirement that the Senate actually vote on a nomination. The delaying tactic was a huge gamble for the Republican Party, but since Trump won and they held on to the Senate, it ended up panning out.
That’s why it was heartening to see Sen. Susan Collins make it clear that she would vote “no” if a nominee is put forward before the election, regardless of the nominee’s qualifications. It’s certainly not a position designed to please the conservative base or party leadership: Trump lashed out at her on Twitter, while Senate Majority Leader Mitch McConnell pledged to move forward. It will no doubt draw the ire of grassroots conservatives across Maine as well.
It shouldn’t be too upsetting to conservatives, however. This is a fundamentally different situation from 2016, when the president wasn’t running for re-election. If Trump wins and the Republican Party retains the Senate majority, he could still replace Justice Ginsburg with a conservative. Rather than being upset at being unable to fill the seat quickly, conservatives all over the country should use the vacancy as motivation to redouble their efforts.
Moving forward with the confirmation before Election Day – or, worse, during the lame-duck session after losing the election – would not only be inconsistent and hypocritical, but also somewhat undemocratic. That’s not because the president loses any of his powers until he leaves office. Rather, it’s because the widespread acceptance of his use of those powers is based on his having been democratically elected. If he tries to push through a major action like filling a vacancy on the court just before an election, half the country would view it as illegitimate – regardless of whether it’s constitutional.
Even if Republicans were able to quickly confirm a conservative nominee before the election, they ought to pause and reconsider. Liberals are already advocating for radical policies to reshape the Supreme Court, like adding more justices. If they win after Republicans replace Ginsburg, those efforts will gain tremendous steam. That’s the worst possible outcome of the current vacancy, as it would further divide the country and undermine faith in our institutions. Susan Collins understands that perfectly well, and that’s why she’d rather wait to fill the seat. Her colleagues should listen to her, not just because it might cost them politically, but because it could do lasting damage to the democracy as a whole. In the long run, that’s far more important than any one election.
Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins.
He can be contacted at: jwfossel@gmail.com
Twitter: jimfossel
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