CNN Films’ “RBG” chronicles the life and legacy of Justice Ruth Bader Ginsburg. Watch tonight at 10 p.m. ET.
Supreme Court nominations are legacy-making events for presidents. It’s that important.
But the system for confirming new members to the bench, with just nine justices and lifetime appointments, has become as partisan as the rest of our politics.
The last time a Supreme Court justice died in an election year – Antonin Scalia, in 2016 – Republicans blocked President Barack Obama’s nominee Merrick Garland, because it was an election year. It was a craven political move that’s burned white hot Democratic anger ever since.
The only thing worse will be if, now that Justice Ruth Bader Ginsburg has died just 46 days before the next election, Republicans are able to push a new justice through because it’s an election year.
In 2016, Senate Majority Leader Mitch McConnell defended blocking the pick because, as he said then,”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.”
In February this year, asked about a hypothetical vacancy, he didn’t mince words, responding, “We would fill it.” And Trump just this past week, before news of Ginsburg’s death, issued a list of possible Supreme Court nominees, as part of an effort to energize his base voters.
Republicans currently have 53 members of the Senate. So they can’t lose many votes and still get a majority for a nominee. But McConnell certainly has enough time to push a nominee through before the next Congress is sworn in January 3.
It would be a damn-the-torpedoes moment, all the more so if Democratic nominee Joe Biden wins the presidential election and the Democrats take the Senate. On Friday night, Biden said, “Let me be clear, that the voters should pick the president, and the president should pick the justice for the Senate to consider.”
But Americans writ large might be okay with McConnell moving ahead now, despite the hypocrisy. In a Marquette University poll conducted in the days before Ginsburg died majorities of Republicans and Democrats said the Senate should conduct hearings and a vote on a Trump nominee. Just about a third of those polled said hearings should not be held.
More than three quarters of those surveyed (78%) said a Senator voting against a Court nominee because of the political party of the president who appointed them is not justified. And a majority said a nominee should not be opposed because of their views on political issues.
Still, it’s not a leap to say that if the people have just dismissed Republicans in an election and they still get a Supreme Court justice, that should perhaps lead to a serious reckoning with the confirmation process.
‘A crisis of confidence’
The court is supposed to be insulated from the public in order to maintain their fidelity to the law, and they’re supposed to be above the political fray.
But the way we pick them feels nothing short of corrupt.
During the Democratic primary there were already grumblings about the court. Former South Bend, Indiana, Mayor Pete Buttigieg argued it’s time to structurally change the highest court.
“What we need to do is stop the Supreme Court from sliding toward being viewed as a nakedly political institution,” Buttigieg said during a CNN town hall.
He toyed with a plan to expand the Supreme Court from nine to as many as 15 members – five each to Republicans and Democrats, and five non-political members.
He wasn’t alone.
Sen. Kamala Harris, now the Democrats’ vice-presidential nominee, voiced some support for expanding the court. So did Massachusetts Sen. Elizabeth Warren, who’s suggested bringing appellate justices onto the court at times.
“We are on the verge of a crisis of confidence in the Supreme Court,” Harris told Politico in March. “We have to take this challenge head on, and everything is on the table to do that.”
Biden said during an October 2019 debate that he opposes making the court bigger. “I would not get into court packing,” he said. “We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
In that Marquette poll the country was roughly split on whether to make the court bigger – 46% said they would favor a proposal to increase the number of justices and 53% said they would oppose it. Democrats, 61%, are more likely to favor such a proposal compared to 34% of Republicans.
Nine justices since 1869
There’s nothing in the Constitution that says there should be nine justices.
Congress has the ability to set the size of the court, according to Article III of the Constitution, which reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
There were six justices when the Court first began in 1789. It’s been at nine since 1869.
Franklin D. Roosevelt tried to pack the court after he won his second term in office, when the court was standing in the way of some of his New Deal proposals.
He backed a law that would have added a justice for every Supreme Court justice over the age of 70, and capped the size of the court at 15. The proposal ultimately foundered, however.
Why Ginsburg was pressured to retire
The current political calculus around picking justices also clouds their legacies.
Ginsburg has in recent years become a true celebrity of liberals and progressives and will be remembered for legal contributions to gender equality outside her Supreme Court career. But she also ignored the nervous prodding of Democrats in the final years of the Obama administration that a cancer survivor in her 80s should retire.
She met that criticism head-on in an interview in 2014 with the Supreme Court reporter Joan Biskupic: “So tell me who the President could have nominated this spring that you would rather see on the court than me?”
She meant at the time that Obama would have to nominate a more moderate nominee to get confirmed and she was a true progressive. She had hoped to be replaced by the first woman president, according to NPR’s Nina Totenberg, who said on CNN, “fate dealt her cards not that way.”
Ginsburg couldn’t have known Trump would defeat Hillary Clinton in 2016. She wrote a note to her granddaughter expressing her fervent wish that someone else would pick her replacement. But now it’s not her decision. It’s Trump’s.