When Supreme Court Justice Antonin Scalia died in February 2016, Senate Republicans blocked president Obama from installing his successor as a matter of high principle. Insisting that the American people “should have a voice in the selection of their next supreme court justice,” majority leader Mitch McConnell prevented even the consideration of the nominee, Merrick Garland. Four years later, in the wake of Justice Ruth Bader Ginsburg’s passing, McConnell’s philosophy has, conveniently, evolved. It now appears that eleventh-hour appointments are not only permissible but eminently desirable, if a party controls both the Senate and the executive branch of government. Clearly revelling in the liberal anxiety this volte-face has occasioned, McConnell and Sen. Lindsey Graham have signalled their determination to push through a nominee, with the eager support of president Trump, on the eve of an election – a move that would all but guarantee a Conservative majority on the court for decades.
Without getting into the weeds of American politics, it is fair to say that the issues at stake in the fight over Ginsburg’s legacy are expressions of long standing political tensions. The Supreme Court not only deliberates on issues like freedom of speech, the death penalty, and abortion, it defines the entire political landscape by delimiting the ambit of executive and legislative power. Control of the court is therefore, arguably, as important as control of Congress or the White House. Two thirds of Biden supporters recently cited Supreme Court appointments as “very important” in their choice of candidate, as did 61 percent of Trump voters. That is why the GOP is willing to risk a significant electoral backlash by expediting an appointment. Control of the Senate was enough to spare Trump the consequences of impeachment; if McConnell can marshal the same level of support, there is little to prevent the party from allowing the president to thumb his nose at his political opponents yet again.
The structural and procedural obstacles facing Senate Democrats are of fairly recent vintage. In 2013 Democrat majority leader Harry Reid abolished the sixty percent threshold vote for most presidential appointments – a move born out of frustration at Republican intransigence towards Obama’s nominees. Four years later the Republicans dispensed with a similar threshold for Supreme Court appointments. If the GOP leverages this to impose a new Justice they court disaster if the Democrats flip the Senate and win the presidency. Last week, minority leader, Chuck Schumer warned that if “leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year.” Possible reforms could include the removal of the filibuster and even the expansion of the Supreme Court, a move that would effectively cancel Trump’s vaunted appointments of hardline conservatives.
The next six weeks will essentially pit Ginsburg’s Legacy against McConnell’s. Her tenacity bequeathed a raft of coruscating legal dissents on key Supreme Court opinions and landmark rulings on such issues as gender discrimination, access to abortion, and marriage equality. McConnell, by contrast, has earned a Machiavellian reputation as the “gravedigger of American democracy.” He is infamous for a coldblooded and uncompromising determination, notably under president Obama, to getting his own way or frustrating the will of his rivals. In The New Republic, Alex Pareene notes that one of McConnell’s fundamental goals has been to “immunize conservative power from the ballot box through permanent domination of the judiciary.” It is a sad irony that he should get the opportunity to achieve this, on the eve of an uncertain election, because of the passing of one of America’s great liberal justices.
