It’s nearly impossible to find a social cause to which RBG hasn’t, at one time or another, resolutely committed herself. From same-sex marriage and minority voting rights during her tenure on the bench, to, before that, women’s equality as a litigator. Perhaps even more importantly, she had the habit of conducting justice with the kind of effervescent, disarming wit that endeared her to millions, particularly young men and women.
Needless to say, then, that the Republican push to fill her seat during Trump’s term adds insult to serious injury. But I’d prefer to direct our attention to the future, which I think hangs more precariously in the balance than most people realise. The question now is, how should the Democrats proceed?
My first – and least controversial – argument is that the Republicans should attempt to fill Justice Ginsburg’s seat. Precedent,while far from simple, certainly leans more this way than the other.
A Supreme Court vacancy in an election year has occurred 29 times before, of which 19 have occurred when the Senate and White House have belonged to the same party (as they do now); and 10 when they have not.
Of the 19 times that one party has controlled both the White House and the Senate, the President’s nominee has been confirmed exactly 17 times. By comparison, of the 10 times that the White House and the Senate belonged to different parties, the nominee has been confirmed just twice.
That is a crucial insight, not because precedent is important for its own sake, but because Republicans should seek to understand what ‘advise and consent’ (the Senate’s formal role) actually means, and I can’t think of a more justifiable choice of dictionary than ‘What Every Senate In That Position Has Meant’. I’m not defending the actions of specific Republicans; they are, we can probably agree, conducting their roles in bad faith. I’m only suggesting that the perfect ‘Sen. Republican’ would vote to confirm Trump’s nominee.
But fine, that point wasn’t exactly prescriptive. The vast majority of Republicans would doubtless have voted to confirm if the precedent had gone uniformly the other way.
My second argument is more controversial: the Democrats must avoid the temptation to pluck at every possible feather to stop them.
Let’s be clear. There’s a lot left in the progressive war chest. In a recent NYT article by Adam Jentleson, he suggests as a plan of action the possibility of keeping one Democrat on the Senate Floor at all times to block the “unanimous consent” (U.C.) agreements that allow Senate business (including Judiciary Committee meetings, where any confirmation hearing would be held) to take place. Without these U.C.s, the Republicans would need to make sure that 51 senators turned up to Washington for every tiny bit of business. This is a powerful weapon, because Republicans have plenty of incumbent senators who just can’t afford to take days off campaigning.
Another idea is boycotting the confirmation hearings. After all, if Kavanaugh’s hearing changed no votes, this one won’t either. Plus, a boycott will mean that Trump’s nominee doesn’t get through the process without losing some legitimacy.
But it’s precisely this kind of ruthless scandalisation that the Democrats should forego.
To put it as Justice Ginsburg once did, ‘doctrinal limbs too swiftly shaped may prove unstable’. You see, one doesn’t simply add an asterisk to a Supreme Court nominee. Three consecutive, highly-charged, and contentious nomination processes – all losses for the Democrats – could just be enough to provoke the kind of ill-conceived, sweeping structural reform that could change US politics forever.
Perhaps the most obvious example is the temptation to expand the Court. A few direful Supreme Court decisions (potentially, overturning Row v. Wade), coupled with a few less-than-legitimate Justices presiding over those decisions will encourage Democrats to – let’s call it how it is – gerrymander the Supreme court by adding a few Justices here and there. Yes, the size of the Court has been changed many times before, but very few have been that nakedly partisan. FDR’s 1937 ‘court packing’ plan resulted in a tidal wave of backlash – and that was FDR.
But it couldn’t end there. Democrats can’t do anything without first removing the filibuster, a sort of procedural glitch that means simple votes can require supermajority. Whilst that is a very credible proposal, the decision to advance it should not be made in an atmosphere of outrage and scandal. The Democrats should, among other things, pay close attention to Antonin Scalia (a deceased friend and colleague of Justice Ginsburg) who, paraphrasing Hamilton, points out that “yes, it seems inconvenient… but inasmuch as the main ill that besets us is the excess of legislation, it won’t be so bad.”
That is a very serious point. Policy cuts both ways. The Democrats won’t always have the upper hand in the Senate, and they may regret that they can’t call upon the filibuster when they desperately need it.
And that’s really the end of my argument. I’m not saying that the Democrats shouldn’t want any of the stuff that might come with scandalising this nomination process, I just don’t believe they’ve really thought it through. The death of Justice Ginsburg, and the bitterness of the nomination process, is prodding progressives where it stings. But don’t let the language of heroism distort her true character: she wouldn’t want her party to act rashly.