It says something about the effects of decades of politicization of the Supreme Court that the instant Justice Ruth Bader Ginsburg’s death became public, the bitter partisan debate over her replacement began.
For me, the news broke just as I was sitting down to Rosh Hashanah dinner, and I was avoiding social media over the weekend due to the Jewish holiday. But having had time to reflect on the news, it struck me as pretty clear that Republicans will not be able to face voters in the future if they do not confirm Ginsburg’s replacement.
To be clear, there are some sub-debates regarding the timing of any potential confirmation. Whether it has to happen before Election Day, whether it could happen if Republicans lose control of the presidency and the Senate and there is a lame-duck session before they leave office in January, or whether they can use this as an opportunity to get reelected and then confirm a replacement in the new year. There will be plenty of opportunities, in the months ahead, to debate those topics. But the bottom line is that I don’t see how the Republican Party can face their voters with a straight face if they have an opportunity to replace one of the most reliable liberals on the Supreme Court with a strong conservative, and instead they surrender and let the Left name the replacement.
A few years ago, I argued that the Republican failure to repeal and replace Obamacare was the biggest broken promise in political history. If Republicans decline to replace Ginsburg, it would obliterate what’s left of their brand.
For the past several decades, Republicans have run on appointing and confirming conservative Supreme Court justices who strictly follow the Constitution. That is especially true for the current president and Senate majority, neither of which would exist were it not for the issue of judicial appointments. The issue of judges was the only thing that got many reluctant Republicans to vote for President Trump in 2016, and the confirmation of Brett Kavanaugh was a key to Republicans maintaining and expanding their Senate majority in 2018.
It’s difficult for me to see what Republicans could run on in any future election if they had the chance to confirm a conservative judge and secure a solid majority on the court and instead allowed the seat to be filled by a liberal.
How can any Republican campaign with a straight face on the idea of appointing conservative judges? Of taking back the Supreme Court? How does any brand survive if it produces an outcome that’s the exact opposite of what it was supposed to do? If tens of millions of consumers purchased a brand of weed killer, and it turned out that product actually promoted the growth of weeds, it would be charged with fraud and soon out of business. Hard to see how Republicans survive if they allow this seat to go to a liberal.
There is no doubt that should Republicans push through a confirmation, it could radicalize centrist Democrats, just as the passage of Obamacare energized Republican voters, and many conservatives were radicalized by the Kavanaugh confirmation fight.
But some Republicans are running scared because Democrats are threatening to pack the court with liberal judges should the GOP move ahead with this nomination. It would be embarrassing for Republicans to surrender to such threats. They should not avoid doing something ordinary, having a Republican president appoint a Supreme Court justice that gets confirmed by a Republican Senate, because Democrats are threatening to do something radical.
If Democrats want to have a fight over packing the court, Republicans should be prepared to fight that battle. Let West Virginia Sen. Joe Manchin, and other Democrats representing red states, explain to their constituents why they want to expand the court to place two liberal justices on it.
Others are claiming that if Republicans confirm a nominee, the legitimacy of the Supreme Court will be in danger. But as far as I can tell, whenever people talk about the legitimacy of the Supreme Court being in danger, all it means is that there’s a risk of something happening that could benefit conservatives.
Did anybody talk about the legitimacy of the court when Democrats blocked a perfectly qualified Robert Bork because they disagreed with him? When the Joe Biden-led Judiciary Committee leaked news of a confidential FBI report in an effort to smear Clarence Thomas? When Democrats blocked Miguel Estrada to a lower court appointment because they worried it would help Republicans electorally if they eventually got to appoint the first Hispanic Supreme Court nominee? When they nuked the filibuster to get more of President Barack Obama’s nominees confirmed? When top Democrats promoted gang rape accusations against Kavanaugh? No, instead, the media cheered all of this on, because nobody raises questions about legitimacy in response to Democratic escalations in the judicial battles.
Democrats and the media are naturally acting as if the Senate’s refusal to hold hearings on Merrick Garland during the 2016 election is exactly the same as the current situation. But there’s a basic political reality: Republicans in 2016 controlled the Senate and thus had the power to block Garland. In 2020, they control the Senate and have the power to confirm Ginsburg’s replacement. If they don’t use that power, they should declare bankruptcy as a party.
