It is time to fill the Supreme Court vacancy

As the nation continues to mourn the passing of former Associate Justice Ruth Bader Ginsburg, we remember her as a true trailblazer in the legal profession who fought the noble fight for women’s rights throughout her career. But as with the death of any Supreme Court justice, the next question becomes how to fill the vacancy.

Only six weeks out from election day, President Donald Trump nominated Judge Amy Coney Barrett, even as some politicians called for him to wait until after the inauguration. A heated partisan fight is about to ensue on the question of whether or not Barrett should be confirmed. But there is a more fundamental question about whether or not Trump should have nominated anybody at all, and whether or not the U.S. Senate should attempt to confirm her, this close to the election. 

Irrespective of partisan fighting, the reality is that it is time to move forward with a Supreme Court nomination.

“While one can make an argument that Republicans have been complicit in these violations — and done nothing to attempt to reverse them — it is impossible to say that they are the source of them.”

Democrats have asserted that when Senate Majority Leader Mitch McConnell, R-Ky., refused to hold hearings on former President Barack Obama’s nomination of Judge Merrick Garland in 2016, he set a “new standard” for the Supreme Court nomination process. Liberals say the standard is that there should be no confirmations in a presidential election year.  They contend that McConnell is being hypocritical by violating the standard that he created. But that argument is specious.

In 2016, the “new standard” created by McConnell was not actually that there should be no Supreme Court confirmations in a presidential election year. Rather, it was that the Republicans should stick by history in not confirming a nominee of an opposing party in an election year. Republicans are sticking by history now, as well, in saying that there is nothing strange about confirming a Supreme Court nominee of a president of the same party in an election year.

There have been 29 cases in which there has been a vacancy on the Supreme Court in an election year. Nineteen of those times the Senate was controlled by the same party as the president. Seventeen of those 19 times the nominee was confirmed. Ten times the Senate was controlled by the opposing party of the president. Only one out of those 10 times was the nominee confirmed before the election. The key difference between 2016 and 2020 is that the presidency and Senate were controlled by opposing parties in 2016 and the same party in 2020. There is tremendous precedent to explain why the Republicans would confirm a nominee in the latter case but not the former.

Despite Democrats accusing Republicans of violating the norms of the Supreme Court nomination process, this is not the case. In fact, while there is no real record of Republicans undermining the fundamental norms of the court, there is a robust record of Democrats doing it. While one can make an argument that Republicans have been complicit in these violations — and done nothing to attempt to reverse them — it is impossible to say that they are the source of them.

Prior to 1987, the Supreme Court nomination process was relatively nonpartisan. Whether senators agreed or disagreed with the nominee, they voted for him or her based on their qualifications. But this changed when Democrats launched all-out partisan warfare on one of the most qualified nominees in history, Robert Bork. Bork was not confirmed, and it started a long tradition of bitterly partisan nomination processes. The fights we see today over Supreme Court nominees are relatively new and started with Democrats breaking these age-old norms.

Another time-honored norm that has been crushed is the filibuster on court nominees. In 2013, then-Senate Majority Leader Harry Reid, D-Nev., changed the Senate rules to only require 51 votes for any given nominee, not the 60 previously needed. This has resulted in nearly every nomination being decided by a party-line vote. Extending that precedent to Supreme Court nominees, McConnell has been able to reshape the courts in the past four years. In other words, destroying norms can have unintended consequences for the party who breaks them.                    

Going forward, some have threatened to add justices to the Supreme Court if Trump and the Republican Senate move forward with the confirmation process. But packing the court undermines the fundamental integrity and independence of the court. It is so unpopular that the people lashed out at Franklin Delano Roosevelt in 1937 when he proposed it. Now, almost 85 years later, a key norm of our Republic – an independent judiciary – is under threat once again.

When we address the main objections to Trump and the Republicans moving forward with a Supreme Court nominee, we find two things. Firstly, we find that the Republicans have actually been extraordinarily consistent with precedent and history in both 2016 and 2020. Second, we find that there is no merit in the contention that Republicans want to undermine Supreme Court “norms.” It is actually Democrats who have worked to undermine the process for decades.

The bottom line is that it is time to confirm a new Supreme Court justice, without delay. The partisan bickering will continue, but we shouldn’t get caught up in the heat of the moment.

Jack Elbaum, a freshman majoring in international affairs and economics, is an opinions writer.

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