Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas. The views expressed in this commentary are his own. Read more opinion articles on CNN.
While a law student at the University of Kentucky, the institution where I teach, Senator Mitch McConnell surely learned about the importance of justice and democracy. In the wake of Justice Ruth Bader Ginsburg’s passing on Friday evening, there is one action that McConnell can take that may very well save our democracy: announce that the Senate will not consider a Supreme Court nomination until after Inauguration Day 2021.
But it also unfortunately occurred with only 46 days until Election Day, when the politics of the moment could not be more vitriolic. Within minutes of her passing, people were speculating as to whether Donald Trump would nominate a new justice and whether the Republican-controlled Senate would confirm someone before the next presidency.
Justice Ginsburg herself made her wishes known as her dying declaration: “My most fervent wish is that I will not be replaced until a new president is installed.”
Any other path, except for announcing a public pause to defuse the situation, would be extremely dangerous for democracy.
In February 2016, after the death of Justice Antonin Scalia, McConnell stated, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
That was politics talking. McConnell did not want Democratic President Barack Obama to fill Scalia’s seat. It worked, as McConnell refused to give a vote to Obama’s nominee, Judge Merrick Garland, instead allowing President Trump to appoint Justice Neil Gorsuch to the seat.
But following the same mantra right now—letting the next president nominate a new justice—would not be political: it would be principled, honest, and democracy-preserving.
That is because the opposite path—a heated, partisan confirmation fight in the middle of a presidential election—would be almost unimaginable. Democrats, who are not really over McConnell’s refusal to consider the nomination of Garland, would never accept a new justice as legitimate if forced through this quickly.
It is hard to trust McConnell to do the right thing. In May of last year, when asked about his position on filling a seat should a justice die, he said with a smile, “Oh, we’d fill it.” Friday evening, McConnell doubled down on that promise, stating, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
But filling the seat in the next 46 days—or, if Democratic presidential nominee Joe Biden wins in November, before January 20, 2021 during the lame-duck portion of Trump’s term—would take American democracy to the breaking point. Both sides would dig in their heels. The nominee, whoever he or she is, will face mud-slinging and partisan attacks that would make the extremely vitriolic confirmation of Justice Brett Kavanaugh look tame in comparison. At least half of Americans would never view a new justice under these circumstances as legitimate. Ever.
And imagine the horror should the presidential election result in a dispute, Bush v. Gore-style, that goes to the Supreme Court, with a brand-new justice, confirmed under these circumstances, casting the tiebreaking vote. It’s hard to say that American democracy could recover.
The better course, the path to defuse this extreme political moment, is to announce a bipartisan plan to take a pause. To take some time to honor Justice Ginsburg’s legacy. To allow everyone to take a deep breath and not enmesh the court, the only non-elected branch of our federal government, in further political battles while voting in the presidential election has already begun.
The year 2020 has already been difficult enough, with a global pandemic, protests about police brutality and racial injustice, raging fires in the West, massive hurricanes in the South, and a presidential election that has featured lies designed to undermine the legitimacy of our electoral process. Adding a Supreme Court confirmation battle will only add fuel to the fire.
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McConnell, and his fellow Republicans, have the chance to show that they really care about American democracy. They can refuse to move forward on a nominee because they know that pushing a justice through in this environment would be toxic. They can reduce Americans’ already-fraught nerves, on both sides, by pressing pause. They can show that they have principle, using the same rule they created for 2016 right now, putting the wellbeing of their country ahead of their own partisan interests.
Or they can push forward to grab power at all costs, knowing that doing so will damage democracy even further.
Senator McConnell: how do you truly wish to be remembered?