On Friday, Supreme Court Justice Ruth Bader Ginsburg passed away after a long battle with cancer. Ginsburg was a trailblazer in American politics and culture, just the second woman appointed to the Supreme Court, she was a “feminist icon,” a tireless supporter of inclusion, and an emblem of the progressive branch of American society.
Ginsburg took on an iconic status and there have been some excellent tributes to her legacy on and off the court. Regardless of how you view her politics, she was a powerful and groundbreaking force in American life. President Trump’s reaction to her death was one of the best moments of his presidency, and signals the kind of impact RBG had across the political spectrum. My favorite tribute is the one Eugene Scalia wrote about his father’s friendship with Ginsburg. This is truly inspiring. We should all work to have friendships with those across the political aisle, remembering there is so much more to life than politics.
Almost immediately after Ginsburg’s death, the battle over the vacancy reached a fever pitch. With less than two months left in his presidency, Donald Trump has the opportunity to appoint his third justice to the Supreme Court. Democrats said the nomination should be made after the election. Republicans say it should be made now.
The Nominees
The President is considering two women for the nation’s highest court, judges Amy Coney Barrett and Barbara Lagoa. Both women sit on Circuit Courts of Appeals and neither has the bank of opinions Gorsuch and Kavanaugh had, which may aid a quick confirmation. Both women could serve on the court for decades and would be the youngest members of the court. Both women are constitutional conservatives and promise to reconfigure the balance of the court.
Lagoa is the daughter of Cuban immigrants and serves on the 11th Circuit Court of Appeals. She is a catholic from Florida and was confirmed before the Senate in November of 2019 by an 80-15 bipartisan vote. After graduating from Columbia Law School, she worked in private practice and as a federal prosecutor before former Gov. Jeb Bush appointed her to the Florida 3rd District Court in 2006 and Gov. Desantis appointed her to the Florida Supreme Court in 2019. Lagoa has more experience as both a prosecutor and a judge than Barrett, but has only recently emerged as a candidate for the nation’s highest court. Lagoa’s upside is that she might be easier to confirm and she could give Trump a boost in Florida.
Barrett is the most likely candidate. The president has signaled his support for her before and indicated that he wanted her to have Ginsburg’s seat. She is currently a judge on the 7th Circuit Court and taught at Notre Dame for almost twenty years. She is a devout Catholic and has seven children, two of whom were adopted from Haiti. In the past, she’s expressed her desire to “follow the law where it goes,” and to rule according to her core judicial principles. Barret’s upside is that she’s extremely well versed as a legal theorist with a track record of conservative rulings.
The Backlash
Mitch McConnell is back to being the Democrats’ most hated man in Washington, briefly eclipsing the president after he announced that the president’s nominee would receive a vote on the floor of the Senate.
After refusing to hold a vote when President Obama nominated Merrick Garland in 2016, McConnell, Lindsey Graham, Chuck Grassley, and others in the GOP have been accused of hypocrisy this time around, a charge McConnell and Graham have denied. The irony is, every person charging them with hypocrisy was also on the other side of the issue in 2016; after all, holding up nominations is called “The Biden Rule.” This is one of many instances in American politics where the sides have switched, but the true issue remains: the side in power gets to do what they think is best.
Democrats are trying to frame the Supreme Court nomination around the issue of health care. This nominee will likely be on the court to rule on how pre-existing conditions will be handled under the Affordable Care Act. Opening arguments are scheduled for the week after the election.
We find ourselves in a lamentable situation where nearly every social and legislative issue will find its way to an unelected group of nine people instead of moving through the two houses of our elected representatives. That being the case, both Democrats and Republicans are right that the next nominee will play an outsized role in shaping American life in the future. Unfortunately, this both heightens the importance of Trump’s selection and also reinforces the reality of our ossified Congress.
Within hours of Ginsburg’s death, Democrats began threatening Republicans with retaliation if they tried to fill the vacancy. Chuck Schumer said nothing would be off the table next year. Nancy Pelosi said she had many options to choose from in retaliation. AOC said, “All our rights are on the line. To protect them, everyday people must mobilize in unprecedented ways to keep the SCOTUS vacancy open & win back the White House + Senate.” She has also suggested that the Dems impeach the president or the AG to delay the hearings. Others on Twitter threatened riots, even members of the media
Rep. Joe Kennedy threatened to pack the court in 2021 if the Dems take back the Senate. This is a sentiment shared by Schumer and other party leaders. Other options include adding Washington D.C. and Puerto Rico to the union, abolishing the electoral college, and abolishing the filibuster. But all of these things have been on the table before Ginsburg’s death. It’s hard to take “good faith” arguments about civility, norms, and respect for our institutions seriously from a group of people who have already threatened to destroy, who have let their cities languish under protests and riots for months, and who only this week have begun to condemn looting and arson. On top of that, the Democrats showed their true colors during the Kavanaugh hearings.
The Crisis
The hardest point to rationalize in all of this is why any conservative would go along with it. When it comes to Trump, it’s easy to understand why some conservatives refuse to support him and actively oppose him. They see a moral tradeoff between voting for the party that supports their political goals and lending their vote to such an immoral leader. But what’s the moral exchange here? We vote for senators who will advocate on our behalf. This has nothing to do with Trump. If conservatives don’t support the confirmation of qualified conservative judges, what can they support? Of course, Christians can disagree here, but it's hard to see why.
The argument that it’s only fair to wait for the Democrats to take the presidency and the Senate back and appoint their own judges is laughable, but some Christians and Never Trump conservatives are making it. There are those who are warning that voting on a nominee will create a constitutional crisis. But let’s step back a minute. What constitutional crisis? The president is given the task of appointing nominees to the Supreme Court. It’s happened 29 times before in an election year. The Senate is given the task of voting on the nominees, something both parties have done before in election years. If the Senate confirms the president’s pick before the election, that won’t be a constitutional crisis, it will be the system working as designed.
If there is a crisis surrounding the nominee, it won’t be constitutional but partisan. One line of argument is captured in this tweet, “It doesn’t have to get crazier. If we know that RBG’s death will likely make things worse, we could actively try not to.” But let’s ask the question again: avoid what? Who’s doing the avoiding? If there’s a crisis surrounding this nomination process it will have one cause and one group who could have averted it: people who resist, incite, and sabotage the constitutional order when they don’t get their way.
It’s not healthy and it’s not necessary to bow to these demands. The problem with ultimatums is that they shift blame onto the wrong person. "If you do that, I'll do this" works fine when you're disciplining children or taking legal action, but it doesn't work so well when children use it to threaten their parents or criminals try to alleviate their responsibility. In an ultimatum, each party takes responsibility for their actions. In this case, Republicans must own their responsibility to vote on justices the president nominates and Democrats must take responsibility for their reaction.
If there are riots, threats, ultimatums to pack the court, destroy the electoral college, and impeach the nominee if they are approved, that will be the result of the partisan spiral into which our country has descended. At the same time, if Republicans bow to these threats it will only serve to ensure that they become a more regular fixture of American political life. If we want to bring the country back to a civilized, functional union, we have to stop giving in to tantrums; we have to stop reacting to the fits of the fringes.
In response to the rhetoric leveled over the weekend, Sen. Marco Rubio and others, including Sens. Mike Lee and Ben Sasse, introduced a constitutional amendment to keep the court at nine justices.
Despite all of the threats, this is a pretty simple process. There will be lots of protesting, grandstanding, and threatening, but if the Republicans have the vote in the Senate, and it looks like they will, they will confirm the president’s nominee and she will serve on the Supreme Court. This isn’t just a political move, it’s their constitutional right. As Hugh Hewitt argues in the Washington Post, let the Dems threaten what they may, the only thing that matters for the confirmation is votes. Everything else is political fallout, and if it goes like the Kavanaugh hearings, most of it will help the GOP.
The Religious Implications
One other intriguing angle will be how Kamala Harris deals with the nomination process. As a member of the Senate judiciary committee, she will be expected to attend the committee hearings, meetings, and votes. Will this pull her off of the campaign trail? And if the Kavanaugh hearings are any indication, will she lead the charge to smear the nominee? When Brian Buescher was confirmed to the district court in August of 2019, Harris, Hirono, and Feinstein took the opportunity to question whether any member of the Knights of Columbus, a historic Catholic social group, has a place on the federal bench. Some saw this as a warmup round for attacks on Amy Coney Barrett.
Of course, Barrett has already faced these challenges on her own. When she was confirmed to the circuit court in 2017, Dianne Feinstein famously said, “The dogma lives loudly within you,” something Barrett has probably worn as a badge of honor. The attacks against her will center around her Catholicism, with Democrats trying to paint her as an extremist on issues like abortion, religious freedom, and gender roles.
Whoever is selected, expect conversations about the role of religion in American life. Remember this, Christians are often pinned with the impossible task of leaving their religious beliefs out of politics. But what about everyone else? When it comes to Christian beliefs on abortion and sexuality, Christians are asked to relegate their beliefs to their homes and their church buildings. When it comes to secular beliefs about these issues, no one can violate their conscience; live your truth. Additionally, both of our presidential candidates have reached out to people of faith during their campaigns. Biden, in particular, has gone out of his way to make his faith central to his appeal. But what impact does his faith have? On nearly every issue that conflicts with the historic teachings of the church, Biden puts his politics above his faith. The Democratic party has become a hostile place for biblical Christianity. It would never occur to the Democrats on the judiciary committee to question a pro-choice liberal Catholic about their religious beliefs, but if the nominee believes what the church has believed for two thousand years, expect their faith to be front and center.
The Timeline
The president announced this morning that he will make his selection Friday or Saturday of this week. Once that selection is made, the Senate judiciary committee will begin the process of vetting the candidate, holding hearings, and voting on whether or not to bring the candidate to the full Senate for a vote. After this, the Senate will discuss and move to a vote. There are several different timeline options, many of them depending on how long the judiciary committee takes to vote on the candidate. In the two most recent cases, Kavanaugh and Gorsuch took 89 and 66 days, respectively, Kavanaugh’s confirmation being held up by weeks of investigations and hearings in committee. Others have been confirmed more quickly; Ginsburg’s confirmation took 50 days, Rehnquist’s 49, Stevens 19, O’Connor’s 33. Most have taken longer. The average on the court right now is 79 days. There are 43 days until the election.
It might be that the vote takes place after the election. It’s possible that the nominee moves out of the judiciary committee before the election, but that the Senate does not vote until after November 3, either for logistical or political reasons. It may be that delaying the vote earns a yes from Tillis, Collins, Murkowski, Gardner, McSally, or others facing reelection.
At this point, it’s equally likely that McConnell moves ahead with the vote as quickly as possible. The GOP can afford to drop three senators and confirm the nominee. So far, Collins and Murkowski have said they believe the nomination should be made after the inauguration. That doesn’t necessarily mean they won’t vote to confirm a qualified candidate before the election. If they vote no, or abstain, the vote will likely depend on one of three senators: Mitt Romney of Utah, Cory Gardner of Colorado, and Chuck Grassley of Iowa. As of Monday morning, none of the three have spoken about their intentions. The likely holdout is Mitt Romney, who has opposed the president at every point since he joined the Senate in 2018. It’s unlikely McConnell will call a vote without knowing the votes, but there’s a lot of time between now and then.
Cole Feix is the founder and president of So We Speak. Follow him on Twitter, @cfeix7.