Pendhamma Sindhusen is an independent political columnist and analyst.
On Saturday, America was shocked and aggrieved when the news broke out that SCOTUS Justice Ruth Bader Ginsburg had passed away. Sorrow, condolence wishes and prayers were in the air as millions around the country paid tribute to the legal titan and feminist icon. But besides a nationwide lugubrious ambience, the passing of the late Supreme Court Justice also left another legacy — one that has instantaneously become integral to the political contentions in this election season, a vacant SCOTUS seat in a presidential election year.
In recent memory, such a vacancy has already sparked an acrimonious political battle once when President Obama nominated Merrick Garland to SCOTUS after the death of the late Justice Antonin Scalia 4 years ago. Republicans successfully fought to block the nomination, arguing that the seat should be filled by a new president elected by the American people. Now, a reminiscence of that episode is here; Democrats are demanding that RBG's seat be left unoccupied until the presidential inauguration next year, availing themselves of that precedent, as Trump plans to announce his pick next week.
To many, it would be much of a hypocritical conduct for Republicans today to stand in good faith and endorse the president's intention. However, examining the past more closely, there is a strong case for them to, and for whoever he nominates to be confirmed without delay.
Throughout the history of the republic, political businesses are governed by statutes and traditions. Hitherto, none of the former presents a challenge to the nomination process; the Constitution clearly states that the president has a plenary power to make a Supreme Court nomination irrespective of how late into his term or how close to the election it is. The law also states that the Senate likewise has a plenary power to either approve or reject the nomination arbitrarily without any temporal limitation. Indeed, Trump can legally send his nominee to the Senate and Senate Republicans can legally confirm that nominee to the bench. But what about traditions?
In many instances, no official law exists to regulate how politics proceeds, but political leaders rather start traditions and establish norms they deem essential to its fluidity and viability. These traditions and norms are notably abundant in the Supreme Court appointment procedures, and they are central to the debates that we have and will continue to witness in the weeks to come.
Historically, the Supreme Court has had an empty seat in a presidential-election year 29 times, and in all of them, the incumbent president stepped up to his duty to make a nomination to fill it. This year should be no aberration; Trump has every right, both legally and consuetudinarily, to send his nominee to the Senate for confirmation (and he should, for the reasons that will be soon discussed). Any argument against this point is completely invalid.
Meanwhile, what do the traditions say about the Senate? In 19 out of those 29 occasions, the Senate majority and the presidency belonged to the same party and most of the nominations were approved without much dissent. The only deviation was when a bipartisan group of senators waged a successful campaign to block Abe Fortas's nomination to become chief justice in 1968 after the nominee was embroiled in an ethics scandal. In the other 10 occasions, the Senate majority and the presidency belonged to different parties, and in 8 out of them, the nominations (including Merrick Garland's) were rejected. The only 2 that went on to be confirmed were exceptional; Melville Fuller was confirmed in 1884 when the Court's docket was packed with a cumulus of backlogs while the nomination of William Brennan, an outspoken progressive Democrat, by Republican President Dwight Eisenhower in 1956, was well received without dispute by Senate Democrats who constituted a majority then.
Apparently the tradition seems to have only played in a way that, if there exists an interpartisan conflict, or any other kind of conflict, between the executive and the legislative branches that hinders progress when it comes to a SCOTUS nomination in an election year, political leaders would have to resort to the American people to resolve the conflict. With regards to the case we face today, there is no such conflict; the president and the Senate majority belong to the same party, and the options that would otherwise be available for Democratic senators as apparatus in obstructing the confirmation process have been made so incredibly ineffective that they are unlikely to pose a substantial challenge to the confirmation process in a way that would require it to be postponed until the election result comes in and, should Trump lose, a new president is inaugurated. That remarkably includes the filibuster which has been neutered by Mitch McConnell’s 2017 use of nuclear option to extend the alteration of the cloture rule that Harry Reid had previously made in 2013 for other presidential nominations to SCOTUS nominations, requiring that only a simple majority (51 votes) instead of a conventional two-third majority is required to invoke cloture, i.e. terminate a filibuster. Even when a Democratic senator decides to filibuster in protest against the nomination, the filibuster will most likely be quickly overridden as Republicans now boast a 53-seat majority.
Hence, there is no need for the nation to wait. In fact, there is too much of a risk if the nomination and confirmation processes are to be handicapped.
The Court with only 8 justices instead of 9 could provide a leeway for confusion and chaos to transpire in today’s time and environment. What if an election litigation, for example, were to happen like it did in 2000 and a SCOTUS case like Bush v. Gore were to be undertaken? Would it not be extremely risky for the nation and the fate of the election when one seat on the Court is absent? What if a 4-4 decision deadlock occurs? What happens then? There is a high possibility of a constitutional crisis in such a scenario, and the country definitely cannot afford such risk.
In short, President Trump is right to exercise his legitimate authority and fulfill his obligation to the American people to nominate a new justice; it is in America’s best interests that a new justice be shortly installed. And the Senate has an obligation to do its sworn duty and confirm his nominee to prevent any cataclysm from ever happening. Indeed, when history weighs in, it does endorse a prompt SCOTUS appointment by the president.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2020 Pendhamma Sindhusen
Sharlee on September 29, 2020:
Thank you for your research, refreshing. I enjoyed the read, can't disagree with a single word.
A B Williams from Central Florida on September 22, 2020:
We have had to live with the fact that Dems control the House and therefore, we’ve had to accept that Nancy Pelosi is part of that equation.
The Dems have had to live with the fact that Republicans control the White House and the Senate and therefore have to accept the filling of this vacant seat (sooner than later) as part of the equation.
But I know better....
Ken Burgess from Florida on September 21, 2020:
Well put, there is a lot of bad information being spewed by the Democrat politicians and the MSM that is biased in their favor.
For hundreds of years there has been a process, and when the Senate and Presidency is controlled by the same party, the nomination and confirmation is usually completed within two months time.
In some cases under a month.