The death of Supreme Court Justice Ruth Bader Ginsburg just 45 days before a presidential election has roiled official Washington. President Trump has stated he intends to nominate a successor within days, as he has every right to do under our law and traditions. The real question is what the Senate should do. Senate Majority Leader Mitch McConnell has pledged to bring President Trump’s nominee up for a vote on the floor of the Senate, but wisely did not say when he will do so.
Fortunately, the Senate has the luxury of waiting until after the election and taking the results of the election into account before it votes, because the current Republican-controlled Senate remains in place until January 3.
The situation is made awkward by McConnell’s broad statements in 2016 when he refused to bring Obama’s nominee, D.C. Circuit Judge Merrick Garland, up for a vote or even give him a hearing. Those statements have been widely perceived as maintaining that the Senate should never bring up a nominee within a year of a presidential election, although I have been unable to find where McConnell actually said that.
In any case, today McConnell is attempting to distinguish his 2016 position with a more nuanced interpretation that turns on the fact that the presidency and the Senate were in different hands at the time of Garland nomination and Obama was a lame-duck president who was nearing the end of his term and could not run again.
I have previously expressed my disapproval of the treatment of Judge Garland, a distinguished and moderate judge who would have been an excellent Supreme Court justice, arguing that “two wrongs don’t make a right” and that the Senate should not make a habit of refusing to consider nominees on their merits.
The Constitution has nothing to say about any of this, but leaves it entirely up to the good judgment of the Senate — and particularly the Senate majority leader, who decides what to bring to the floor for a vote — how to “advise and consent” on a nomination to the Supreme Court, which includes when to vote. In the unique circumstances that apply today, the Senate should hold hearings on President Trump’s nominee but delay a floor vote until after the election on November 3.
Several different things can happen on November 3: President Trump could be re-elected and Republicans may retain control of the Senate; President Trump could be re-elected but Republicans may lose control of the Senate; President Trump could be defeated but Republicans may retain control of the Senate; President Trump could be defeated and Republicans may lose control of the Senate; or the results of the election may be disputed and the Supreme Court may have to decide critical cases relating to the election with only eight sitting justices, five appointed by Republican presidents and three by Democrat presidents.
Which of these scenarios comes to pass in November is highly relevant to what the Senate should do on a Trump nominee to the Supreme Court. Fortunately, the Senate has the luxury of waiting until after the election and taking the results of the election into account before it votes, because the current Republican-controlled Senate remains in place until January 3. Let’s consider the possibilities one by one.
If President Trump is re-elected and Republicans retain control of the Senate. This one is easy. The Senate should proceed to a vote on the nominee’s qualifications on their merits, and presumably would vote to confirm. But by waiting for the results of the election, the Senate will have shown respect for our democratic election process.
If President Trump is re-elected and Republicans lose control of the Senate. This one is moderately hard, but I think the Republican Senate, which under the Constitution continues to hold power until January 3, should proceed to a vote on the nominee’s qualifications on their merits. However, some senators on both sides of the aisle might choose to take the results of the election into account in determining their votes.
If President Trump is defeated but Republicans retain control of the Senate. This one is harder, but I think that out of respect for the judgment of the electorate, if President Trump is defeated, the Senate should decline to confirm President Trump’s nominee and give the incoming president the chance to name his own nominee after January 20. A Supreme Court justice nominated by a rejected president would never be seen as legitimate by a substantial fraction of the country.
At this point in our history, we can ill afford more events that undermine the perceived legitimacy of our government. I believe there are at least four Republican senators who would see it this way and put the good of the country above party; accordingly, they would not vote to confirm prior to the election because of the risk that President Trump might be defeated, but probably would vote to confirm the same nominee after the election if President Trump wins. Thus, President Trump probably has a better chance to get his nominee confirmed if McConnell waits until after the election to conduct the vote.
If President Trump is defeated and Republicans lose control of the Senate. This one is easier than the last, but comes out the same way: a Supreme Court justice nominated by a defeated president and confirmed by a defeated Senate majority would have even less perceived legitimacy, even though he or she would have been nominated and confirmed in technical compliance with the Constitution. Let’s hope the Senate has the good judgment to avoid this partisan and divisive result.
If wisdom does not prevail, and a defeated Senate majority confirms the nominee of a defeated president, it is a virtual certainty that the incoming administration would try to expand the size of the Supreme Court to “pack” it with enough liberal justices to take control. If that happens, what remains of the Court’s legitimacy as a court, rather than a political body, would be further undermined.
If the results of the election are in dispute. This is the hardest case. An eight-justice court might be able to reach a result on election litigation that would be both wise and credible with the public, but I’d worry that Chief Justice John Roberts might be tempted to join with the three remaining liberal justices in order to preserve the perceived legitimacy of the court as a non-partisan institution that does not decide cases along party lines. He has been accused of doing that in several cases in the past, although I think there were good grounds in legal doctrine for his votes in those cases.
If Chief Justice Roberts defected to join with the three remaining liberals on the court, the result would be a 4-4 tie that would affirm whatever the lower court had done, and that would depend upon the vagaries of which lower court had issued the ruling under review. Litigants know that too and could decide to bring cases in lower courts in jurisdictions that are biased in their favor, and we could even end up with conflicting lower court rulings in different parts of the country. I wouldn’t take that chance. If the election is disputed, it is a virtual certainty that the Supreme Court will be called upon to rule on several important cases arising out of the disputed election. I think it should do so with a full complement of nine justices, which makes it more likely that another controversial and divisive decision like Bush v. Gore can be avoided. Therefore, if the results of the election are in dispute, the Senate should proceed immediately to a vote on President Trump’s nominee.
What this analysis of scenarios shows is that it is much easier for the Senate to make a wise decision on President Trump’s latest nominee to the Supreme Court if the results of the November election are known at the time that it acts. The constitutional rule that the current Senate serves until January 3 makes that possible, and it would be wise for McConnell and the Republican Senate majority to wait until after the results of the election are known before voting on Trump’s third nominee to the Supreme Court.
The root cause of the problem of what to do about nominations to the Supreme Court on the eve of presidential elections is that our current system gives Supreme Court nominations to presidents at the time of the death or resignation of a current justice. Death is unpredictable, and it often comes at an inconvenient time, as it has for Justice Ginsburg. She undoubtedly hoped her successor would be named by a Democrat. Many had urged Justice Ginsburg to resign while President Obama was still in office, ensuring that her successor would be named by a Democrat, but she declined to do so.
The current system, in which a seat on the Supreme Court becomes available when a sitting justice dies or resigns, is not dictated by the Constitution; it could be changed by a simple statute. A better solution to avoid these destructive battles about nominations to the Supreme Court on the eve of elections would be to pass a law giving each president two Supreme Court nominees per elected term in office, as a co-author and I have advocated. That would create a fair and even-handed system that would allocate appointments equally to presidents and would avoid the political machinations that surround picking Justice Ginsburg’s successor.