Here we are again: another vacancy on the Supreme Court during an election year, this time due to the long-anticipated passing of Ruth Bader Ginsburg. The last time a vacancy happened during an election year was, as we remember, in 2016 on the death of Antonin Scalia. Unfortunately for President Obama, the Democrats had lost the Senate in the 2014 midterms and as a consequence the majority Republicans wouldn’t allow a nominee who would shift the court anywhere left of where it was when Scalia was alive. When I wrote about the Supreme Court on July 4, 2018, I came up with some theoretical standards based upon historical precedent and logic, such as the “Biden-McConnell Rule” (its unusual to confirm justices on presidential election years) and the “Schumer Retort” (its unusual to confirm justices on midterm election years) as to whether not confirming justices on election years was normal . Truth be told, however, the logic that matters in this era of polarization is what party has the majority in the Senate and what party has the presidency. It wasn’t always this way of course…in 1968 a Democratic Senate blocked Justice Abe Fortas from ascending to the Chief Justice post as the Southern Democrats worked with Republicans to defeat it. In 1988, a Democratic Senate unanimously confirmed Anthony Kennedy…the last time this happened. While it is true that historically controversial nominees being confirmed in election years is unusual, as I noted in my July 4, 2018 post, the last time a controversial nominee was confirmed in an election year the president and the Senate were held by the same party…in that case it was 1916 and the nominee was Louis Brandeis. In 2020, Republicans have both the presidency and the Senate. They can and will confirm a justice, whatever the rhetoric is out there.

Historically Significant Presidency

I also wrote previously about how the Trump presidency could be historically significant on the Supreme Court, and if Amy Coney Barrett is nominated and confirmed, as I think will happen, this will prove correct! I wrote on my July 11, 2018 post that “If Trump wins another term, he will certainly be a transformational president for the Supreme Court, and it would be on the scale of FDR should he nominate and confirm replacements for Ginsburg and Breyer. The United States Supreme Court could potentially have at least a half-century of dominating conservative jurisprudence ahead of it, much like the Supreme Court had over a half-century of liberal jurisprudence. This thought is unbearable for today’s Democrats, and they will do all in their power to stop it”. Now, even if he doesn’t win another term, he will be one of the most significant presidents on judicial nominations.  

On “Court Packing”

Back in 2018, I remember liberal columnists writing rather unwisely about reintroducing “court packing” when the Democrats have unified government again, and I have a few things to say about that. First, it befuddles me why they think FDR’s worst political blunder is a good idea. Perhaps the party in 1937 wasn’t the nearly uniformly liberal one it is today and that’s the factor…perhaps they don’t think the arguments used against it in 1937 will be relevant today, or perhaps they just didn’t consider the separation of powers argument. Second, if done under a Biden Administration and a Democratic Senate, it will set a terrible precedent. There is no set number of justices on the Supreme Court laid out by the Constitution, so Congress most certainly has the power to increase the number of justices…and along with there being no set number there is also no cap on the number of justices that can be appointed. Should the Democrats do this, it will start what I will call “court packing wars”. Republicans may increase the number of justices when they get back to unified government. And I certainly don’t mean “if” as pessimistic conservatives seem to believe, I’m not convinced Democrats are competent enough to maintain a permanent national governing coalition as they hope, even with racial and ethnic alliances working in their favor. Political history is one of coalitions rising and falling…and for this there is no “end of history”.

Catholicism of Amy Coney Barrett: A Help for President’s Reelection?

If Trump does, as I think he will, nominating Amy Coney Barrett, the Democrats have ample chances to shoot themselves in the foot, especially if they make hay about her being Catholic, as they did during her nomination to the Seventh Circuit Court of Appeals. Perhaps this nomination will help Trump get a majority of Catholic voters for his reelection should there be support among their voters for Barrett and backlash to the Democrats for their conduct in opposition.

It’s not inconceivable that Barrett could be a help to Trump’s reelection: a justice’s religion has helped presidents in the past: Wilson got points with Jewish voters for nominating the first Jewish justice, Louis Brandeis. Jackson helped secure long-term loyalty of Catholic voters to the Democrats with his nomination of Roger B. Taney, the first Catholic chief justice (and justice) in the history of the Supreme Court.

Whatever happens in the next month, one thing’s for sure: it’s going to be nuts.