Opinion: Who should fill Ruth Bader Ginsburg’s seat?

Photo by Gayatri Malhotra on Unsplash

On Aug. 18, the United States experienced a tremendous loss. Supreme Court Associate Justice Ruth Bader Ginsburg, a feminist icon, key leader in the legal fight for women’s rights since the 1970s and a jurisprudential giant, died at age 87. Her death is unleashing a new fierce battle in an already badly divided country and renewing criticism of the Supreme Court structure. 

Nominated by President Bill Clinton and confirmed to the Court in 1993, Ginsburg served on the Supreme Court for 27 years, emerging as a leader of the Court’s liberal wing and amassing a devoted following around the country.

Yet, scarcely had word rippled out about the justice’s death when Washington began gearing up for a fraught political fight about filling Ginsburg’s seat.

President Trump tweeted out the same night that he intended to nominate a successor, throwing the country’s rapt attention to the Senate.

Democratic lawmakers, immediately recalling Senate Republicans’ treatment of President Obama’s nominee for Justice Scalia’s successor in 2016, began clamoring for their Senate colleagues to honor the new precedent they had established. Senate Republicans refused to conduct confirmation hearings for Garland more than eight months before the 2016 election, frequently citing the nearness of the election as the reason. 

Meanwhile, GOP leaders pivoted from the Garland case to the longer history of the Senate where there has been a history of the Senate confirming a Supreme Court justice in an election year.  

Given the current disposition of the Senate, if the Democratic Caucus and the Independents that caucus with them were to collectively oppose the nomination, four Republican Senators would have to defect in order to stall confirmation until after the presidential inauguration. 

Though the immediate question is who should name Justice Ginsburg’s successor, that question was effectively answered when Senator Romney (R-Utah), a potential defector, came out in favor of President Trump’s right to nominate a successor. 

Given the nearly unified stance the Senate Republican Caucus has taken on the issue, it is exceedingly improbable that the seat will go unfilled until after the next inauguration. 

The real question, then, is one over the Supreme Court selection process itself, which inspires nearly universal discontent. 

The fact that the country had to pivot to this fight with hardly a moment to simply mourn Justice Ginsburg and pay tribute to her many accomplishments is an egregious example of the brokenness of the Supreme Court nomination process.  

On the Left, this discontent was vividly on display in the days following Ginsburg’s death. Tributes for Ginsburg, celebrating all the causes she fought for and the advances she helped wrought were mingled with profound dread as to who President Trump and Senate Republicans would tap to replace her.  

This dread is not limited to the liberals, however. Republicans who are eager to solidify the conservative tilt of the high court should recall their initial fears when Justice Scalia died during President Obama’s term. Fear of a Democratic President replacing the influential conservative is what led Senate Republicans to take the norm-shattering step of refusing confirmation hearings to Judge Garland. 

It is shameful that any period of mourning for Ginsburg was preempted and that, instead, those who celebrate the justice had to prepare for an intense political fight over her successor.

Even worse is word from Ginsburg’s family that the justice herself had to worry on her deathbed about the effect her passing would have on the U.S. Any reasonable observer should agree that a dying 87-year-old being concerned about the political impact of her death is an arresting illustration of a broken process. 

Yet, she did. And as her granddaughter has shared, Ginsburg’s dying wish was to not be replaced until after the next inauguration. A dying wish that Senator McConnell and President Trump could not wait even a full day before announcing their intent to trample upon.

Outrage at how Senate Republicans handled the Garland nomination and how they are planning on handling the new vacancy has given fresh vitality to the idea of expanding the Supreme Court if the Democrats win control of Congress and the White House after the 2020 election. 

While this idea has merit, particularly when progressives imagine a reactionary Court striking down critical and time-sensitive climate change legislation, it carries risks.

Expanding the Supreme Court risks Republicans retaliating the next time they regain power. Even if they do not, considering that the Supreme Court is an institution that depends upon the recognition of its legitimacy, expanding the Court will almost assuredly damage the Court’s legitimacy in the eyes of Republicans and Republican-leaning independents even more than the treatment of Garland harmed it in the eyes of progressives. 

Furthermore, influential party leaders including former Vice President and Democratic presidential nominee, Joe Biden and Sen. Bernie Sanders (I-VT) have explicitly opposed the idea in the past.  

There are alternatives to the country having to undergo a polarizing and traumatic fight every time a Supreme Court seat becomes vacant. 

Indeed, most of the world’s liberal democracies have effectively taken steps to prevent such fraught processes. No other major democracy grants their version of the Supreme Court justices lifetime appointment.

Germany, for example, appoints justices for a single nonrenewable twelve-year term. Through the still considerable length of the term and the non-renewability, this concept still preserves judicial independence while conferring several frequently cited benefits.  

First, it helps regularize the appointment process. Barring deaths or unexpected retirements, presidents would be assured a stable number of appointments. As it stands now, the number of seats a president has the opportunity to fill is capricious and irregular. In a single term President Carter named zero in the same time President Trump will, in all likelihood, have named three. 

Secondly, it would halt the process of justices clinging to their seats well into their seventies and eighties. Even with Ginsburg’s death, four of the Supreme Court justices are above the age of 70. There have been real concerns before about justices serving to an advanced age. 

After Justice William Douglas had a stroke but refused to retire, seven of the other justices privately agreed that they would postpone any case where Douglas would be the decisive vote. The risk of such ad hoc decisions being necessary would likely be significantly reduced if the Supreme Court had term limits. 

Democratic lawmakers in the House plan to introduce a bill that would establish term limits in the Supreme Court. Though there is a question about the constitutionality of such a plan, and almost assuredly, it will not be taken up by the Senate, it may provide a valuable roadmap for Democrats if they regain the Senate and the White House in 2020. 

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