Fill that Seat!
Last month, the nation was saddened by the horrible news that Supreme Court Justice Ruth Bader Ginsburg had passed away due to complications with pancreatic cancer. This not only left a gaping hole in the equality and justice movements of the past and present of our country but also one in the court itself. This is especially problematic, considering the current number of justices, the political makeup of the court and the nature of issues likely to be handled by the court in the next few months.
These three factors will lead to the court becoming effectively useless. As CBS writer Grace Segers stated in an article shortly after the passing of RBG, “If the eight-person court is split 4-4 in any case, the request to stay a lower court ruling is denied, which would leave the lower court ruling in place. So, in the case of Bush v. Gore, a 4-4 decision by the Supreme Court would have meant the Florida Supreme Court ruling allowing for a recount would be upheld.” (in reference to the decisive Bush v. Gore case (5-4) in allowing a recount in the state of Florida). This situation would most likely result in a tied verdict in many cases because of the de facto political makeup of the court. The court is officially split 5-3 conservative-liberal now, but it is functionally 4-4 because of how Justice John Roberts traditionally votes. This inefficient process would last until Joe Biden is inaugurated in late January and can pick a new SCOTUS nominee. That is… if he gets elected. If we wait to nominate, the court and current senate would have to wait three months to vote on a new nominee. That is upward of three months until the Federal Supreme Court can functionally make decisions again.
Waiting to vote on a SCOTUS nominee or refusing to allow a nomination until the next presidential term is inefficient, unconstitutional and a shabby display of party politics. This whole situation is an extremely hypocritical display on the ends of both parties. After the death of conservative Justice Antonin Scalia in 2016, many Democrats insisted on moving forward with a nomination as soon as possible. In an article by Sen. Rick Scott (R-FL), he points out that many Democratic lawmakers had very different opinions about a very similar situation back in 2016; the only difference was flipped parties. Some notable quotes are those from Sen. Chuck Schumer (D-NY) (“Every day that goes by without a ninth justice is another day the American people's business is not getting done”), Sen. Amy Klobuchar (D-MN) (“Eight is not enough on the United States Supreme Court”), former Vice President and 2020 Democratic presidential nominee Joe Biden (I would go forward with a confirmation process as chairman, even a few months before a presidential election…The American people deserve a fully staffed Supreme Court of nine, not one disabled and divided, one that is able to rule on the great issues of the day”) and even Ruth Ginsburg herself on why Merrick Garland’s nomination should be approved (“That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year”).
Of course, it would not be fair to disregard some of the hypocrisy on the other side of the aisle. Ironically, in 2016, Sen. Graham (R-SC) said, “I want you to use my words against me: If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey O. Graham said, ‘Let’s let the next president, whoever it might be, make that nomination...And you could use my words against me, and you’d be absolutely right.’” We are right in using Graham’s words against him. However, unlike many Democratic politicians, he has recognized and at least attempted to justify his hypocrisy. When confronted, Graham said, “Harry Reid changed the rules to allow a simple majority vote for Circuit Court nominees dealing out the minority. Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open. In light of these two events, I will support [President Donald Trump] in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.” His first reason is a long shot claim that has been proven mostly false, as it was Senate majority leader Mitch McConnell who spearheaded the transition of the Supreme Court nomination process to a simple majority. Despite this, as well as the controversial claim of using the unfair allegations against Kavanaugh in 2018 as evidence for his reasoning, I respect him for recognizing and at least attempting to defend his argument with more than pure partisanship. These are things not found in the hypocrisy cases found within the Democratic Party.
I feel that the stance of the Republican Party in 2016 and of the Democratic Party currently are both fueled by blatant partisanship and are wrong. It is the constitutional right of the sitting president to nominate a Supreme Court Justice and the right of the current Senate to vote to confirm. The fact that parties in both of these situations put party over the Constitution is quite frankly disrespectful and a sad testament to where we are as a nation. Whether or not you agree with Amy Coney Barrett’s policies, Trump has the right to nominate her, and the Senate has the right to vote to confirm her without delay, as they did with Garland in 2016.
Regardless of your stance, you cannot argue against the court needing nine justices to function. This is a matter of making sure our nation's highest court is functioning, not politics. Instead of arguing against the Constitution, Democratic voters and politicians need to make the case of why the Senate should vote against the confirmation of Barrett to the Supreme Court. Another argument to make is one in favor of term limits, not only to the Court but even to Congress. These are arguments with far more merit and ones that have a higher chance of paying off.