Some politicians and their followers are raging about the idea of filling the Supreme Court vacancy. They wax indignant about imagined hypocrisy. They virtual signal about multiple wrongs, not making a right, and how the ends don’t justify the means. But the truth is a careful analysis of the Constitution, history and precedent reveal that all this fuss is just mindless blather.
In our history, we have had 29 election year nominations to the Supreme Court. Three times George Washington made Supreme Court nominations in an election year. John Adams, Thomas Jefferson, Abraham Lincoln, and Franklin D. Roosevelt, among others, also made election year nominations to the high court. More recently, Barack Obama and now Donald Trump have made election year nominations.
Interestingly, the Ginsburg vacancy isn’t even the closest to an election. In 1864, only 27 days before the election, there was a vacancy and President Abraham Lincoln nominated Salmon Chase who was also confirmed before election day.
When the Senate and President agree on the nominee, confirmation has proceeded even in an election year. When the President and Senate do not agree on the pick, the nomination has not been confirmed. When there is such a disagreement and the parties reach an impasse, they are forced to appeal to the American people to break the impasse by casting their votes in the next election. The Senate can’t make the President nominate someone they approve of, and the President cannot make the Senate confirm his nominee. So when they’ve reached an impasse, letting the voters decide, and break the impasse, in the soon to be held election is a reasonable and constitutional thing to do.
But when the Senate and the President agree on a nominee, waiting to fill a vacancy until the next election dishonors and disenfranchises the voters in previous elections who elected the President and the Senate. Since they have the constitutional authority to act, and since the voters placed them there in legitimate elections to fill any vacancy during their time in office, those who argue they should not fill the vacancy are, in fact, arguing to ignore the vote, overturn earlier elections, and disenfranchise millions of American voters.
There’s nothing moral about that argument, as it is of someone who seeks to overthrow our constitutional system of elections and checks and balances.
Only when the President and the Senate cannot agree on a nominee and have reached an impasse is it appropriate to wait until the next election to fill a vacancy and thereby allow the people to resolve the impasse. Those who voted for the President and those who voted for the various Senators must have their votes listened to. But sometimes they reach an impasse. When that constitutional process produces an impasse, either nothing happens, or we look to the people to break the impasse in the next election. That is what happened in 2016. But that is not what happened in 2020. Thus, there is no hypocrisy.
There is no doubt that the GOP Senate should have done a better job in 2016 of explaining what was meant by “letting the people decide” and that an impasse was why it was appropriate to ask the American people to resolve the dispute in the next election. But regardless, there is no doubt that certain power-hungry opportunists would make the same arguments regardless.
And sadly, these power hungry opportunistic political operatives have fooled many otherwise intelligent Americans of goodwill. But if Americans expect to be free, they will have to do a better job of not giving in so easily to every sophist who tickles their ears with soothing sounds that reinforce their political biases or give them something about which they can virtue signal. We all have biases, but we must be willing to challenge them and look at the facts and use sound reasoning.
Too often, I’ve seen smart friends — who I admire greatly — fall for absurdly silly narratives simply because it suited their views and so they engaged in no serious thinking. I’ve seen this on both sides of the political spectrum. Regardless of whether one is a liberal, conservative or moderate, if we expect to be free, we can’t fall into the trap of either loving our side so much that we are uncritical in our thinking, or hating the other side so much that we refuse to even engage in fair analysis of their points. But the Constitution, history and precedent make it clear that there is no good argument for waiting to fill this seat and all the virtue signaling and faux rage about imagined hypocrisy cannot undo that logic.