There is perhaps no better year to quote The Joker: “And here. We. Go.”
As if the 2020 election could not get any more sensational, the passing of the great Supreme Court Justice Ruth Bader Ginsburg has thrown an already divided nation into ideological chaos just weeks before the election.
Nothing is certain, but it would appear that the Republican Party is going to shamelessly balk at their own 2016 precedent of no Supreme Court nominations in an election year. With less than 50 days to the election, Senate Majority leader Mitch McConnell has committed to holding a confirmation vote for the president’s nominee, who will be named next week.
To demonstrate just how blatant the hypocrisy is, here are a few quotes from 2016 by Republican Senators still in office:
“If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.” — Sen. Lindsey Graham (R-S.C.)
“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.” — Sen. Ted Cruz (R-Texas)
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” — Sen. Mitch McConnell (R-KY.)
All have committed to moving forward with Trump’s nominee in 2020.
While one can hope that the Senate can find 4 Republicans with any sense of fairness in democracy, Democrats should plan for what the GOP usually delivers — the worst.
So the question that must be asked is what reaction would be just, based upon the brazen lawlessness of the GOP, and what would be fair, avoiding claims of bitter hyper partisanship.
Expand The Court
Should the president’s nominee be confimed as our 9th Supreme Court Justice, the Republicans will have de facto stolen a Supreme Court seat. There’s no other way about it. Merrick Garland was nominated months — not weeks — before the 2016 election. If it was too close to an election for him, but not for Trump’s pick, then this is a theft.
That cannot go unchecked in a functioning democracy.
The clear and fair solution is to expand the court to regain the stolen seat. But a problem arises — you cannot add a single seat to the court. With an even number, you run the risk of cases reaching a deadlock. An odd number of seats guarantees that, when all justices have given their opinion, there is a majority of five or more on one side, and four or less on the other.
So you have to add 2 seats. And while on its surface, that seems unfair, the Republicans having only effectively stolen one seat, they have brought this on themselves. It’s not that the second seat is a penalty being imposed BY the Democrats, but is the necessary requirement when the Democrats take their stolen seat back. The penalty of an extra seat is the result only of the actions of the Republican’s party blatant disregard for our nation’s fair governance.
But how do you expand the Supreme Court?
Kill The Filibuster — Then Bring it Back, Reformed
This assumes that the Democrats win a majority in the Senate in the 202 election. While not certain, it’s certainly not unlikely. Polls numbers show the margin razor thin, and with the spectacle this confirmation would create, it’s not hard to imagine that Democrats will have an edge going into election day.
Once holding a Senate majority, they’d face another obstacle — the filibuster. While expanding the court can be done through legislation — no mention of it in the Constitution — the GOP could use the filibuster to block the move, forcing the Democrats to get an impossible 60 votes.
So Senate Democrats would have to “go nuclear”, and end the filibuster. This actually has some precedent: Mitch McConnell did just this after Trump’s inauguration for federal judicial nominees. After refusing to confirm more than 100 of Obama’s nominees, McConnell ended the filibuster so the GOP could pack federal courts with Trump’s nominees without being stopped by a Democratic lead filibuster.
With the filibuster legislated away, the Democrats would need just a simple majority of 50 votes to expand the High Court by 2 seats.
While it’s been corrupted and used as a political weapon, the filibuster actually serves an important function in democracy. It allows a Senator, passionate about an issue, a way to delay a vote so that more information on any given issue can be presented before a decision is made.
It has, of course, not been used for that for as long as I can remember. Now it’s used simply as a way for the minority party to block bills from the majority party from passing. That has to be what ends.
So the filibuster should be reformed and redefined to do only what is meant to do, removing all of the corrupt teeth from its current application.
While there are many ways to do this, one of the simplest would be to put a time limit onto a call for a filibuster. This could be done at the Senate level — a call for filibuster giving the Senate 60 days for any additional remarks or debate, at which point a vote of simple majority must be held.
Or it could be done at an individual level, giving any given Senator who wanted to introduce new remarks to the senate floor two hours to do so. When all Senators who wanted to speak had been given a chance, the filibuster expires, and a vote is held.
If the issue is debate is particularly lively, a senator could call for a vote for more than his/her allotted two hours. If his colleagues felt his remarks were in good nature to the issue at hand, they could grant it as many times as they’d like. But as soon as a simple majority felt the filibuster was more grandstanding than active discourse, they could vote against extending time, and thus move to a vote on the bill.
Either way would give a Senator ample opportunity to be heard, to call attention to a bill they disliked, without giving the minority party the ability to stonewall legislation purely on partisan grounds. The Senate was, after all, designed to be a simple majority by our founding fathers.
Should the Republican party complete their theft of a Supreme Court seat, the Democrats must retaliate. That response can be fair, just, and measured, but they cannot remain silent. Our democracy depends on it.