Democrats, Let Trump Fill the Supreme Court Vacancy
The death of Supreme Court Justice Ruth Bader Ginsburg yesterday couldn’t have come at a worse time. For strategic reasons, it’s unclear how much the Trump administration and the Republican-controlled Senate will rush to fill her spot, but you can be sure that President Donald Trump will use this issue to rally support around his reelection bid.
The last thing Democrats should do is try to obstruct the confirmation process. The rules are simple: in the event of a Supreme Court vacancy, the sitting president gets to nominate someone to fill it, regardless of how close to election time it is, no ifs or buts. If the Democrats try to obstruct this candidate’s confirmation, in the hopes that Biden will win in November and nominate someone more liberal, it will be seen as a faithless political ploy – the mirror-image of the one they rightly condemned Senate Republicans for pulling in 2016, when they refused to vote on Merrick Garland’s nomination because they hoped Trump would win the election. Instead, Democrats should let the process go forward, and engage earnestly in it, and by doing so show the Republicans – and the American people – that they are the more principled side, that they are willing to play by the rules and put country over party, even if their opponents are not.
This would not only be the right thing to do, it would also be the smart thing to do. Trump is not a normal Republican president, and these are not normal times. Trump has obstructed investigations into his misconduct, solicited a bribe from a foreign government, fired patriotic dissenters and whistleblowers, kowtowed to dictators, made a mockery of the American values that politicians on both sides have long purported to cherish, alienated America’s allies, disgraced the country internationally, and thoroughly botched its coronavirus response through his incompetence and science-denial. This combination of stupidity and proto-fascism has even made many longstanding Republicans conclude that he is uniquely unfit for the presidency, and to do the previously unthinkable and break from the party to publicly denounce him and back his opponent.
But if Democrats cynically obstruct the Supreme Court confirmation process, they help Trump to portray this election as a normal election: not the battle for America’s soul that it is, in which people should abandon partisanship and vote their conscience, but as politics as usual, in which both sides are just as unscrupulous, and just as fixated on getting their candidate in by whatever means necessary, and in which people should just vote for the devil they know. The more bipartisan Americans feel, the more likely they are to favor Joe Biden as the obviously more decent and more competent candidate. The more partisan Americans feel, though, the more the sense of tribal loyalty takes over, and the more this election just becomes a tossup between two roughly-evenly-matched groups of partisans.
The more partisan Americans feel, the more the sense of tribal loyalty takes over.
Trump has counted on this tribal sentiment to win his entire political career (note how he panders and inflames the worst prejudices of his base as few politicians ever have). Trump has shrewd political instincts, and is likely hoping the Democrats will help him by trying to obstruct the Supreme Court confirmation process. He is hoping they will make this mistake.
Unfortunately, the Democrats may already be falling into this trap. Plenty of liberals are repeating RBG’s dying wish that she “would not be replaced until a new president is installed,” as if this wish has any legal effect. Just a few hours after her death, Chuck Schumer, the leader of the Democratic Senators, declared that “this vacancy should not be filled until we have a new president.”
If the Democrats go down this path, it will be a terrible blunder. It will portray them as blatantly partisan and hypocritical right before the election, and, because of the way the electoral system is structured and the fact that they draw support from a more diverse electorate, Democrats need to take more moderate positions to win, and so are unlikely to get away with the same naked partisanship the Republicans got away with with Merrick Garland’s nomination in 2016. (As Ezra Klein, founder and editor-at-large of Vox, put it in his essay “Why Democrats Still Have to Appeal to the Center, but Republicans Don’t,” “Democrats can’t win running the kinds of campaigns and deploying the kinds of tactics that succeed for Republicans.”) The absolute worst thing the Democrats could do now is make a circus out of the coming confirmation process like they did with Brett Kavanaugh’s, which was so cynical that several Democratic senators, like now-Vice Presidential nominee Kamala Harris, declared they knew Kavanaugh was guilty of the allegations against him before even bothering to hear the testimony of either party. Such a move might galvanize the Democratic base, but it will lose the Democrats the wavering moderates and conservatives whose support counts for much more in this election. The presidential race now is too close to call, and, if the Democrats obstruct the process to confirm a new Supreme Court justice, it could easily tilt the odds in Trump’s favor.
If the Democrats try to obstruct the Supreme Court confirmation process, it will be a terrible blunder.
Right now, conservatives have few compelling reasons to vote for Trump. With RBG’s death, though, he can dangle filling her Supreme Court seat as a carrot. Democrats should steal that carrot from him by taking the moral high ground. They should accept Trump’s presidential prerogative to nominate a candidate to replace RBG and view the loss of her seat as a fait accompli, a blow that fate has dealt them. They should give any candidate Trump nominates a fair and timely hearing, and vote to confirm if he or she seems qualified for the position. Yes, it’s awful that abortion rights in America will now be more threatened than ever with the possible overturning of Roe v Wade. But Trump’s Supreme Court picks haven’t been that bad, and both have demonstrated their judicial independence through their willingness to vote against Trump’s wishes in contentious cases, to his outrage. And, obviously, if the Democrats’ cynical gambit to delay confirming a new justice till after the election ends up turning voters off, and Trump is reelected as a result, he’ll fill that Supreme Court seat anyway, as well as that of any other justice who happens to die or retire in the next four years. The fight over RBG’s vacant seat is a battle that Democrats shouldn’t even engage in, especially since trying to win it could lose them the war.