Saturday, Donald Trump nominated Amy Coney Barrett for the Supreme Court to replace Justice Ruth Bader Ginsburg who passed away on September 18, 2020, just 45 days before 2020 Election Day. The Senate confirmation hearings start October 12, meaning confirmation could come right before the November 3 election. Voting is already underway in many states.
It all fits together. First part: Republicans play confirmation games for political and policy reasons. Donald Trump appears to be on his way out, but Republicans like rulings from a Republican Supreme Court. They want to keep and grow partisan Supreme Court power. Second part: Therefore, Republicans violate both precedent and the United States Constitution to fill the seat.
POLITICAL AND POLICY REASONS FOR CONFIRMATION GAMES
Donald Trump is expected to lose the election. Democrats are running on a very progressive agenda. Presently, a 5-4 partisan Republican Supreme Court slows and reverses American policies, with 37 purely partisan decisions in the past three years. A 6-3 Court will grind any progressive agenda to a halt.
DONALD TRUMP IS EXPECTED TO LOSE THE ELECTION
- In 2016, Donald Trump squeaked into office short of the popular vote by 2,868,686 votes.
- In 2018, a “blue wave” of record midterm turnout for both Republicans and Democrats gave Democrats an eight percent edge, and turnout in 2020 is expected to break records set in 2008, which helps Democrats.
- Republicans and Donald Trump agree that high turnout is bad for their party.
- In polling, Donald Trump’s rival Joe Biden is far more ahead this year than Hillary Clinton in 2016, near double digits.
- The Democratic candidate in 2020 is more ahead in swing states than in 2016.
- Far more people are decided on a candidate this year, leaving less room for surprises.
DEMOCRATS PROMISE A STRONG PROGRESSIVE AGENDA
Not a few. Not dozens. We’re talking hundreds. Hundreds of bills that received (at least some) bipartisan support that would improve the health, welfare, and economics of everyday Americans. All dead. And McConnell has no qualms about it.
Democrats passed election reform, voting reform, LGBT protections, immigration repairs, gun regulations, minimum wage, climate and environmental regulations, consumer protections, etc., and most recently government reform. Mitch McConnell blocks all of it in his Grim Reaper grave yard.
REPUBLICAN SUPREME COURT PARTISAN POLICY AGENDA
If Democrats take the White House and the Senate, most or all of these bills will be passed again, and this time signed into laws (although it may take until 2023 after Democrats win more Senate seats when Democrats will gain seats due to a favorable map). A 6-3 Republican majority Supreme Court would slash and cancel as much of the agenda as they could, while turning back previous gains as done in 5-4 opinions eliminating campaign regulations and cutting voting rights. This is why Merrick Garland was denied with consent — in a word, policy.
More than a year after Merrick Garland was blocked, the Senate confirmed Donald Trump nominee Neil Gorsuch to the Supreme Court. Over the next three years the Supreme Court issued 37 purely partisan decisions with Neil Gorsuch casting a deciding vote affecting every aspect of society. (New article coming early Oct.)
See Top 10 Crazy Pure Partisan Supreme Court 5-4 Cases With Neil Gorsuch* Deciding, 2017 Term for some examples.
Example: Neil Gorsuch gives lip service to law over policy. In a critical 5-4 partisan case using a 1925 law to force each American worker into individual privatized arbitration when the company violates federal law, Gorsuch cites a “liberal federal policy favoring arbitration.” But the original Supreme Court case in 1953 said the opposite — that arbitration cannot be forced upon workers when federal law is broken. Gorsuch calls that case a “temporary exception since overruled.”
Dissenting, Ruth Bader Ginsburg notes that the Supreme Court itself created the “liberal policy favoring arbitration” in 1983.
The specific 1953 issue concerning companies violating workers rights against federal law was not directly overturned until 2018 when Gorsuch overturned it with “policy” then he accused the dissent of doing policy: “the dissent retreats to policy arguments.”
During those same three years, Ruth Bader Ginsburg cast a deciding 5-4 vote with the majority in 19 cases. She cast deciding votes for issues including upholding abortion, protecting DACA, protecting Native American sovereignty, preserving cell phone privacy, preventing unjustified changes in the Census, etc. Most of those cases did not go the way Republicans wanted, so replacing Ginsburg with an ideological Republican would tighten up the agenda.
The agenda is to delay and revert change — in other words, the main definition of the word “conservative.” A 6-3 Court will have more power to block progress — potentially another 19 cases flipped over the next three years.
BREAKING PRECEDENT AND THE CONSTITUTION
In 2016, Republicans broke precedents and the Constitution. Now in 2020, Republicans reverse their own 2016 false precedent plus they break more historic precedent.
2016: HOLDING A SEAT OPEN TO KEEP THE MAJORITY
In March of 2016, Barack Obama nominated Merrick Garland to replace Antonin Scalia who died suddenly. Republican Senate Majority Leader Mitch McConnell blocked the nomination with a new “rule” of giving the people a “voice.” Republicans took his rule back almost as soon as he fabricated it, promising first to hold the seat open for an entire term of Hillary Clinton then to fill a vacancy in 2020 once Donald Trump took office.
The Senate filled the vacant seat with Donald Trump nominee Neil Gorsuch more than a year later by breaking the filibuster on a near partisan 54-45 Senate vote. Cynically, Republicans blamed Democrats for ending the filibuster on lower court nominations even though Republicans blocked those seats in a policy of total obstruction. Those seats eventually went to Donald Trump too.
The new 2016 “rule” violated historical precedent in three key ways:
- Every time an elected president put forth a nominee before the next election, the Senate considered the nominee. No elected president was ever denied a seat that fell vacant before the next election. The 2016 rule was fabricated whole cloth to take that seat for Republicans.
- Sometimes in history, seats that fell vacant in election years were filled, even by unelected presidents, even after losing the election, and even in the next year, as happened in 1841. This means the 2016 rule was a direct violation of history.
- The Senate considered making a rule to deny a seat to a president in an election year in 1828 and 1968, and twice refused to do so.
See Only Six Empty Supreme Court Seats Were Not Filled by the Sitting President for complete details on the seats.
The Constitution states the president “by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court … ” Barack Obama nominated the individual Merrick Garland “with the Advice” of the Senate. He did his part. Senate Majority Leader Mitch McConnell blocked all activity on the nomination, leaving the nominee and the seat entirely without consent. Consent does not mean that a particular nominee must be confirmed or even that there be a vote — it means that the individual be considered. The Constitution says ‘with consent,’ not ‘without consent.’ But there is no enforcement mechanism for the Constitution.
2018: RUSHING A SEAT CHANGE BEFORE THE ELECTION
In 2018, Anthony Kennedy decided to retire not long before the midterm elections. Donald Trump nominated Brett Kavanaugh, a known partisan operative involved in the impeachment of Bill Clinton. Kavanaugh had used stolen Democratic emails to game judicial nominations under George W. Bush and committed perjury in Senate hearings. Kennedy’s family turned out to be longtime associates with the Trump family.
During the Brett Kavanaugh hearings, allegations of attempted rape and other illegal sexual acts came out, but such allegations were given little consideration. The first woman who alleged wrongdoing was given time to testify. No other witnesses were called, and the vote was rushed. Accuser Dr. Christine Blasey Ford was hung out to dry while Kavanaugh threatened revenge. Brett Kavanaugh was confirmed with the lowest level of support ever, a 50-48 vote.
2020: REPUBLICANS BREAK MORE PRECEDENT
Just four years after Republicans created the rule that a nominee for a seat vacated 268 days before the election would have to wait, a vacancy opened only 45 days before the election. This time, Republicans will fill the seat. Any child can see this precedent breaking flip-flop, especially with voting already underway.
Throughout American history, vacancies occurring in election years by June 10 under popularly elected presidents were filled before the next election — but not later vacancies, even under popular presidents. Examples:
- March 23, 1888, Justice Morrison Waite died. Democratic president Grover Cleveland nominated Melville Fuller who was confirmed 41-20 by a Republican-majority Senate on July 20. This vacancy was closer to the election than the Scalia vacancy.
- May 1, 1860, Justice Peter Daniel died. James Buchanan did not nominate a successor until well after the election, and his nominee was defeated 25-24.
- June 10, 1916, Justice Charles Hughes resigned from the Court to run for president. Woodrow Wilson nominated John Clarke who was confirmed July 2 on a voice vote.
- September 7, 1956, Justice Sherman Minton announced he would retire. Dwight Eisenhower appointed William Brennan temporarily in a recess appointment. Brennan was confirmed permanently after Eisenhower won re-election. This vacancy was further from the election than the Ginsburg vacancy.
- October 12, 1864, Chief Justice Roger Taney died. Abraham Lincoln nominated a successor Salmon Chase December 6, after he won re-election.
The real “rule” is: Republicans use raw power to pack the Supreme Court any way they can. A 6-3 Republican Court will last as long as Republicans can hold it — with carefully timed strategic retirements, indefinitely.