The current Senate must not vote on the confirmation of a successor to the late Supreme Court Justice Ruth Bader Ginsburg. The court’s fragile standing as the nonpartisan branch of our constitutional system cannot endure a rushed, hyperpartisan push to fill the seat left vacant by her death last Friday.
Justice Ginsburg, often described as a leader of the court’s liberal wing, was actually a strikingly nonpartisan figure. Unlike every other current justice except Sonia Sotomayor, Ginsburg never worked in the executive or legislative branches, so she did not emerge from a political milieu. Instead, she made her mark as a brilliant litigator for women’s rights. Seen as a moderate nominee, she was confirmed by a Senate vote of 96-3.
Now Ginsburg is gone, Election Day is six weeks away, and the partisan drive to replace this nonpartisan justice is underway. There are several reasons why this Senate must reject whomever President Donald Trump nominates to replace Ginsburg.
First, there is too little time to conduct a careful, credible review of a nominee to a lifetime position on the high court. As a Senate lawyer and an assistant attorney general before becoming dean at the University of Baltimore School of Law, I worked on eight Supreme Court nominations, from David Souter to Elena Kagan. I can attest that the confirmation process is — and should be — a slow, deliberative endeavor.
The nominee’s prior writings, often voluminous, must be compiled by the White House and reviewed by senators. “Courtesy calls” with dozens of senators take place before the weeklong Judiciary Committee hearing. The committee prepares a report on the nomination for consideration by the full Senate, which debates for at least a week. A valid process takes months, not weeks.
The dwindling days of the 2020 calendar will not accommodate that thorough review of a Supreme Court nominee. Moreover, the Senate has urgent business that should be the focus as this session comes to a close. Members are struggling to pass a continuing resolution to prevent a government shutdown, and an urgently needed coronavirus relief package remains on the drawing board.
More important, it would be an act of breathtaking hypocrisy and a blatant power grab for Majority Leader Mitch McConnell to bring a nomination to the Senate floor days before the election when, in 2016, he refused to allow a vote on President Barack Obama’s nomination of the eminently qualified Merrick Garland because an election was eight months away.
Mr. McConnell justifies his reversal by observing that Judge Garland’s nomination occurred when the White House and Senate were controlled by different parties, whereas Republicans now run both. But that is not a principled distinction, it merely explains that Mr. McConnell had leverage to work his will. The principle Mr. McConnell articulated in 2016 — that a nomination should not advance in an election year to give the electorate more say in the court’s membership — is equally applicable now, even more so because of the proximity of the election. I did not agree with Mr. McConnell’s position in 2016, but it prevailed then and must apply now if the Supreme Court is to be seen as anything other than an instrument of cynical partisan manipulation.
Can a Senate vote this year be stopped? Until recently, the minority party could block Senate business by filibustering; that is, engaging in debate that could only be ended with 60 votes. In 2013 Democrats changed that rule for lower court nominees, and in 2017 Mr. McConnell extended the change to overcome a Democratic filibuster of Supreme Court nominee Neil Gorsuch. Without the filibuster, Democrats must appeal to individual GOP senators to defy their leadership. In the 53-47 Senate, which includes two Independents, four Republicans likely must cross the aisle. Susan Collins of Maine and Lisa Murkowski of Alaska were already willing by Sunday afternoon. Which other GOP senators care about their historical legacies?
If a nominee is muscled onto the court, some hope a Democratic majority would abolish the legislative filibuster and pack the court with Democratic nominees. Instead of retaliation, I favor negotiation. In 2005, I helped to draft the “Gang of 14” agreement in which seven Democrats and seven Republicans defeated a major change in the Senate rules in exchange for concessions on pending nominations. A similar deal is in sight now: moderate Democrats could pledge not to repeal the filibuster next year in exchange for a commitment by a like number of GOP Senators to vote against filling the Ginsburg vacancy this year.
Clearly it will take bipartisanship — a commodity in short supply — to head off a confirmation vote and preserve the legitimacy of the Supreme Court.
Ronald Weich (firstname.lastname@example.org) is dean of the University of Baltimore School of Law who served as chief counsel to Senators Edward Kennedy and Harry Reid and as an assistant attorney general from 2009 to 2012.