Senate Majority Leader Mitch McConnell, in the wake of the recent hospitalization of 87-year-old Supreme Court Justice Ruth Bader Ginsburg, has had made it clear that he would confirm a Trump nominee to the Supreme Court should a vacancy arise this year, despite having blocked a vote on then-President Barack Obama’s nominee, Merrick Garland, after Justice Antonin Scalia’s unexpected death in February 2016. At the time, McConnell said the people deserved the right to have the court vacancy filled by whoever won the presidential election that November.
Upping the ante further, Sen. John Thune, R-S.D., suggested that Senate Republicans would meet in a post-election, lame-duck session to confirm a Trump nominee, even were President Donald Trump to be defeated by presumptive Democratic nominee Joe Biden.
Confirming a new justice in these circumstances, however, might be a pyrrhic victory for Republicans, and could well be the start of an escalating series of conflicts that would destroy the Supreme Court as we know it.
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Legally, of course, nothing prohibits Senate Republicans from confirming a nominee anytime before the next Congress takes over on Jan. 3, 2021 — and last-minute appointments are not entirely unprecedented. Should a vacancy arise for them to fill, Senate Republicans are sure to counter any criticism by invoking the nomination of Justice William Brennan, who President Dwight Eisenhower placed on the court via a recess appointment less than a month before Election Day in 1956.
But Brennan’s situation was different: Not only was he a recess appointment and confirmed by the next Senate, but Eisenhower was an extremely popular president cruising to a second landslide victory over the hapless Democratic nominee, Adlai Stevenson. (By comparison, current polling shows Trump trailing Biden by nearly double-digit margins.)
Most important, though, Brennan was a moderate Democrat nominated by a Republican president and a justice who would prove to be the heart of the Warren Court’s liberal wing; Trump is more likely to give a life-tenured appointment to an orthodox Republican justice.
Confirming that kind of Trump nominee with him well down in the polls or after he has already lost would, at worst, be an example of what the legal scholar Mark Tushnet calls “constitutional hardball” — a partisan action that is formally legal but upsetting to established norms.
Democrats would, naturally, charge Republicans with hypocrisy, given how many senators piously invoked the upcoming election in 2016 when justifying their decision not to even give Garland a public hearing. But, like most charges of hypocrisy, doing so would likely be ineffectual: Opportunistically inventing and then discarding “procedural norms” is almost as natural as breathing to politicians of both parties.
The danger with constitutional hardball that Republicans should keep in mind is that both sides can play. An extremely unpopular president using a last-minute Supreme Court appointment to try to entrench his party’s mostly unpopular agenda through an unelected judiciary might well have serious long-term ramifications for the court.
For an example of how, one need but look to the earliest days of the nation. After John Adams and his Federalist Party were crushed by Thomas Jefferson and his Democratic-Republicans in 1800, a lame-duck Congress — which served for a much longer period at the time — not only confirmed a new chief justice in John Marshall, but created a whole new level of appellate courts and filled them with Adams nominees.
Furious, Jefferson and his allies retaliated with some of the most intense constitutional hardball ever seen in this country: They eliminated the new circuit court judgeships, refused to honor the confirmation of nominees whose commissions weren’t delivered, impeached a Supreme Court justice and outright canceled the Supreme Court term of 1802. The court was able to survive to evolve into its current position of power only because the canny Marshall capitulated to the aggressive actions taken by Jefferson in response to Adams.
As this historical episode demonstrates, judicial power is fragile, because Article III of the U.S. Constitution gives Congress the power to manipulate the size of the Supreme Court and make “exceptions and regulations to its jurisdiction” — which it has done more than once. Republicans in the Reconstruction Era strategically expanded and then contracted the size of the Supreme Court, and the Democrats under President Franklin D. Roosevelt would have almost certainly done so had the Supreme Court not suddenly ended its war on the New Deal in 1937.
If a lame duck confirmation gave Republicans a Supreme Court majority that would both constitute the most reactionary court in more than 80 years and one that was nearly impossible to displace by simply waiting for new vacancies, these same tools remain available for congressional Democrats to use now.
While it’s true that modern Republicans have generally been more willing to push the constitutional envelope, and they may be assuming that Democrats won’t retaliate against a late or lame-duck appointment by Trump, they may well be mistaken — and have been so in the past.
Republicans made a similar gamble about the Democrats’ will to power as the minority party in 2013 when they systematically filibustered all of Obama’s nominees to the powerful D.C. Circuit Court of Appeals. They lost: Democrats invoked the “nuclear option” and ended the filibuster for all executive branch and non-Supreme Court judicial nominees. A Trump nominee who would give Republicans a decadeslong hold on the court irrespective of election results is enormously likely to produce a major response from Democrats sooner or later.
People on both sides of the aisle who are concerned about the future of American democracy should hope, then, that Ginsburg remains on the court until the next president is inaugurated in January. The alternative is likely to be a constitutional crisis whose results are unlikely to make anyone happy, as the Supreme Court becomes the grounds for an endless cycle of retaliation and counter-retaliation between the parties.