By Edward Achorn
Moments after news broke that 87-year-old Ruth Bader Ginsburg had died Friday, the threats and posturing commenced.
We were told that the Democratic justice’s dying wish was that the open seat on the Supreme Court be left vacant until next year, when a new president takes over (possibly a Democrat with a Democratic Senate).
Democratic leaders promised to retaliate if the Republican president nominated a successor and the Republican-controlled Senate confirmed her before the election. Or, as the media put it, if Republicans “jam through” a nomination.
Some say Democrats, after winning power, will punish Republicans for filling Ms. Ginsburg’s seat by expanding the court to 15 members and packing it with Democrats. They will add two Democratic states to puff up their power in the Senate.
For her part, Democratic House Speaker Nancy Pelosi refused to rule out a second partisan impeachment of President Trump in a wild bid to derail the replacement process. “We have our options. We have arrows in our quiver that I’m not about to discuss right now,” the speaker said.
Furious Democrats
The fury made me think of Southern Democrats in 1860 who threatened to defy political norms and secede if the American people that November dared to elect a Republican for president. Many voters, regarding the threats as hollow and attempted blackmail, refused to be frightened out of supporting the Republican nominee, Abraham Lincoln.
Those Democrats, tragically, delivered on their promise. Who knows if today’s Democrats would? In today’s politics, anything seems possible.
Still, all this could be for effect. Democratic leaders must rend their garments and whip up outrage to appease their base in an election year. Responding soberly might depress Democratic turnout and make it seem that leaders did nothing to counter the threat of conservatives in control of the court.
Unfortunately for them, the Democrats appear to have a weak hand.
What the Constitution says
The Constitution invests the power of filling Supreme Court seats (Article II, Section 2) in the president (who nominates a justice) and the Senate (which confirms or rejects). At this moment, the president is a Republican, and the Senate is controlled by Republicans. Supreme Court appointments are a big factor in the voting of many Americans.
While a few Republicans will support the Democrats’ delaying tactics, the others will not, I believe. Republicans have a base, too. It would be suicidal for those politicians to decline to exercise the powers the voters duly and lawfully invested in them, simply to placate Democrats and their allies in the mainstream media.
The rabid GOP base subscribes to a WWDD philosophy: What Would Democrats Do? Democrats, if in in control of both the presidency and the Senate, would surely nominate and quickly confirm one of their own — not unjustly, because the people would have granted them those powers.
Had former Democratic Senate Majority Leader Harry Reid refrained from removing the filibuster rule on federal judicial opponents, today’s Democrats would be in a stronger position. Had Ms. Ginsburg retired when a Democratic president and Democratic Senate were in power, a Democrat might have held that seat for decades yet to come. Democrats cannot cancel those decisions at this point.
Many election-year appointments
Though the media will not stress this, there have been many election-year appointments to the Supreme Court — and even “lame duck” appointments between the election and the time a new Congress or a new term of a president commences.
I write about one such appointment in my new book, Every Drop of Blood. President Lincoln nominated Salmon P. Chase as chief justice on December 6, 1864, the month after Lincoln’s re-election. The Republican-led Senate confirmed Chase that very day.
Dan McLaughlin, a National Review senior writer, did the digging on this issue.
“Nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate,” Mr. McLaughlin reported. “Ten of those nominations came before the election; nine of the ten were successful.”
(The failure was Lyndon Johnson’s nomination of the ethically challenged Abe Fortas. Democrats and Republicans combined to stop him through a filibuster.)
Of the nine nominations after the election (including Lincoln’s choice of Chase), eight succeeded. The ninth, made by George Washington, was withdrawn for technical reasons, and resubmitted and confirmed on the first day of the next Congress.
“The bottom line: If a president and the Senate agree on a Supreme Court nominee, timing has never stopped them. By tradition, only when the voters have elected a president and a Senate majority from different parties has the fact of a looming presidential election mattered. When there is no dispute between the branches, there is no need to ask the voters to resolve one,” Mr. McLaughlin observed.
A little perspective in these turbulent times.
(Read Edward Achorn’s books about American history.)