With the sudden and untimely death of liberal icon and former Supreme Court Justice Ruth Bader Ginsburg just six short weeks before Election Day, the hardline party divide in United States politics has incited an enraged debate on how to fill her seat amid questions about the undermining of democracy within the framework of this institution. Now that Judge Amy Coney Barrett’s confirmation hearings before the Senate Judiciary Committee have concluded, it seems all the more likely within the course of the next few weeks that Senate Majority Leader Mitch McConnell’s promise to have President Donald Trump’s replacement nominee receive a vote on the Senate floor will be fulfilled in earnest. Should Judge Barrett be appointed to the Supreme Court, it would give the Republicans a 6-3 conservative majority to influence rulings on a range of issues involving topics such as abortion rights, gun control, the Affordable Care Act, and environmental protections. Democratic leadership has been crying foul from the very beginning, citing McConnell’s own hypocrisy in rushing to confirm Barrett when in 2016 he announced that he would block the Senate from confirming President Obama’s nominee to replace Justice Antonin Scalia on the grounds that it was an election year and the people of the United States should, through the voting process, have some degree of say in who the next Justices will be. Now that the White House and Senate are both dominated by the Republicans, it has been Democratic figureheads contending that people’s right to choose their government function is being compromised, while their Republican counterparts are claiming that they are simply acting within the framework of their elected purposes as outlined within the Constitution.
Due to the fact that the foundation of many arguments presented on both sides rely on the Constitution, it is important to examine this problem through the idea of constitutionalism as a means to preserve free society and take a hard look at what rules are written in the Constitution in regards to the Supreme Court issue. Spoiler alert: for those hoping that the Constitution would offer some robust guide on the selection of Supreme Court Justices and offer security in determining who is “right” and “wrong” in this situation, then you will likely find yourself disappointed in the reality. The most pressing question following the death of Ruth Bader Ginsburg was how does the process of appointing and confirming new Justices function. In regards to this, Article II, Section 2 of the Constitution states that the President shall nominate and then appoint Judges to the Supreme Court with the advice and consent of the Senate. If this seems intentionally vague, it is likely because this is the way it was intended to be. There is nothing established in the language of the document that indicates whether or not the Senate should hold hearings to question the nominee, the exact quorum that constitutes the necessity of a vote to confirm the appointment, or even the proportion of the majority needed to confirm the appointment. This is inconsistent with other areas in the Constitution, such as the denotation that a two-thirds majority is needed to convict a sitting President of an impeachable offense. What’s more is that the Constitution does not even indicate a set number of Justices required to preside over the Supreme Court; nine is somewhat of an arbitrary number that was conceived likely out of the “need” for Justices. History has shown there have been as few as six and as many as ten. In addition, the time that a Supreme Court Justice must serve when appointed is also an ambiguous point as it is characterized in the Constitution. The actual diction states that a Judge should hold office for as long as they establish “good behavior.” Again, it is not exactly clear what denotes “good” behavior, but we have traditionally interpreted this to mean that a Judge is to serve for life unless perhaps they were to commit a crime or perform an equivalent act of malicious intent. In short, other than referencing the general need for a federal judiciary, there are very few rules as to how the judiciary needs to be constructed.
Therefore, while there may be cries that Republicans are playing an unfair game by utilizing both sides of the field in two separate instances of the same issue, it can’t be said that the actions by the leadership on that side should be deemed unconstitutional. If we are to regard the Constitution as a set of rules that aim to preserve free society, then it would be hard to find evidence within the language of the contract itself that illustrates any breaking of the aforementioned rules. The contentious part, then, isn’t how the Republicans are appointing their nominees, but the actual reasons that they are doing so. This has implications for the degree to which our leadership in this country is actually concerned with preserving free society. In theory, the Senate can block a nominee not necessarily because their character or legal acumen isn’t up to par, but rather because the President making the nomination belongs to the wrong party or the nominee supports legislation that represents the antithesis of the politician’s self-interests. If the Republicans use what seems like coercion to push their nominee through the confirmation process, then what is to stop Democrats from simply using the same power (restricted by the same “rules”) to expand the number of Justices the next time they control the White House and Senate in a show of retaliation using coercive tactics? If they did that, what is to stop Republicans doing the same thing next time they assume control? And so on and so forth. The rules outlined in the Constitution regarding the Supreme Court were likely left intentionally vague so that some of these matters would be placed outside the realm of partisan contest; an agreement among the majority, if you will. However, the rules that are in effect now essentially result in a two party, divisive struggle over the interpretation and implementation of the Constitution, the nature of which is deeply political and coercive.
References:
Black, Eric, et al. “What Does the Constitution Say about Picking Supreme Court Justices? Not Much.” MinnPost, 17 Feb. 2016, www.minnpost.com/eric-black-ink/2016/02/what-does-constitution-say- about-picking-supreme-court-justices-not-much/.
Bouie, Jamelle. “Court Packing Can Be an Instrument of Justice.” The New York Times, The New York Times, 9 Oct. 2020, www.nytimes.com/2020/10/09/opinion/court-packing-amy-coney-barrett.html.
Chong, Jane. “Republicans Are Abusing 'Precedent' to Justify Their Hypocrisy.” The Atlantic, Atlantic Media Company, 11 Oct. 2020, www.theatlantic.com/ideas/archive/2020/10/republicans-are-abusing-
the-concept-of-precedent/616564/.
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