Political Convenience Must End

Two weeks ago, on Friday, Sept. 18, Ruth Bader Ginsburg’s death shook the nation and opened a gap between the chairs of the Supreme Court of the United States (SCOTUS). Justice Ginsburg, “The Notorious RBG,” was a pioneer of gender equality and bastion of the SCOTUS’ liberal wing. Now, her seat may be filled by a conservative nominee from President Donald Trump. Although the president has the constitutional power to nominate a potential SCOTUS justice, the Senate ultimately must vote to confirm them. Six justices have been nominated during election years in the twentieth century, though none so close to the election. In 2016, the Senate refused to confirm a nomination put up by President Barack Obama 33 weeks prior to Election Day on the grounds that such an action couldn’t be done during an election year. However, many members of the current Senate have stepped forward to say they will confirm President Trump’s nominee, despite the election taking place in less than five weeks. These actions show a deliberate willingness to interpret political procedure based on personal political ties.

The Judicial branch stands separately from the Executive and the Legislative branches of the American government because all of its members are appointed by the President and confirmed by the Senate rather than being voted in by the people. Some members of the executive branch are also appointed, but the Judicial branch is the only branch entirely separated from the votes of the American people. However, in 2016, the current Senate Majority Leader, Mitch McConnell, declared, "The American people should have a voice in the selection of their next Supreme Court Justice.” McConnell’s statement came as an argument against former President Barack Obama's nomination of Merrick Garland to fill the vacancy left by Justice Antonin Scalia’s death eight months before the 2016 presidential election.

McConnell backed his argument with a speech that Vice President Joe Biden gave on the Senate floor in 1992 while serving as senator of Delaware. When he gave the speech that McConnell referenced, he was the chairman of the Judiciary Committee, which considers issues related to the federal legal system. In the years before 1992, the Senate had experienced turbulent SCOTUS nominations. Biden took to the floor to claim:

"Given the unusual rancor that prevailed in the [nominations], the need for some serious reevaluation of the nomination and confirmation process, and the overall level of bitterness that sadly infects our political system and this presidential campaign already, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote at best."

Biden was calling for an evaluation of how SCOTUS nominations are performed. There wasn’t a nominee to consider at the time, and the Senate never took a vote to adopt a rule that would delay consideration of a SCOTUS nominee until after an upcoming presidential election. However, McConnell used Biden’s words 24 years later to block Obama’s presidential power to nominate a SCOTUS candidate.

Eleven Senate Judiciary Committee Republicans also wrote a letter on Tuesday, Feb. 23, 2016 to point out how long it had been since a vacancy on the court had both opened and been filled during an election year. They wrote, “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.” The senate rallied behind this and the “Biden rule” to effectively refuse a hearing for any SCOTUS nominee in 2016.

McConnell claimed that it was “about a principle, not a person.” Now, McConnell is swallowing his words. He openly acknowledged his support for President Trump’s nominee, even before anyone was being considered for the role. Earlier this year, he suggested that he would act this way. In a CNN article titled, “In reversal from 2016, McConnell says he would fill a potential Supreme Court vacancy in 2020” it is reported that on Tuesday, May 28, 2019, at a Paducah Chamber of Commerce event in Kentucky, he was asked if he would help fill a SCOTUS seat if a vacancy were to open within the year. According to CNN, McConnell replied with a smile, “Oh, we’d fill it.”

On the night of Justice Ginsburg’s death, McConnell wrote a statement to justify his change in belief from 2016 by implying that it had been a decision made by the people. McConnell claimed, “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.”

Although McConnell said he was sticking with his opinion that the American people should have a say on who’s appointed to the SCOTUS through who they elect as president, his interpretation has always sided with what is convenient for conservatives. Indeed, if President Trump’s nominee makes it through the Senate, conservatives will hold a 6-3 majority on the Supreme Court.

Trump’s highly conservative nominee is Judge Amy Coney Barrett. She is very accomplished in both the legal and academic fields. In 2017, she was elected into the Chicago-based Seventh U.S. Circuit Court of Appeals by President Donald Trump. Barrett is also a law professor at the University of Notre Dame, where she graduated summa cum laude with the Hoynes Prize for achieving the best record in scholarship, deportment and achievement. Barrett was also a law clerk to the late conservative SCOTUS Justice, Antonin Scalia.

Barrett often shows her conservative leanings in her adamant stance against abortion and the Affordable Care Act, as well as her strong support of Second Amendment rights, according to a CNN article titled, “Notable dissents from Judge Amy Coney Barrett.” Many Democrats worry her appointment could upend health coverage for 20 million people, seeing as she wrote in a 2017 law review essay “Countering the Majoritarian Difficulty” that conservative Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Despite her conservative viewpoints, Barrett has been acknowledged on multiple occasions for her bipartisan efforts. In 2017, a bipartisan group of law professors from Harvard, Stanford and other schools around the country promoted her work as “rigorous, fair-minded, respectful and constructive,” according to a White House briefing titled “Judge Amy Coney Barrett’s Exceptional Legal Experience, Expertise, and Judicial Record Make Her the Right Choice to Serve on the Supreme Court.”

Although Barrett is highly qualified to be seated on the Supreme Court, the manner in which her nomination is being pushed forward without regard for political procedure is disturbing. McConnell and other Republican members of the Senate have shown a disregard for political balance and standard procedures in their attempt to fill the government with more conservative members who reflect their ideas in their lawmaking.

This is not the way our democracy should work. Our nation has three branches of government so they can keep each other in balance. Yes, it makes for slow progress, but respecting the opinions of the American people, a principle McConnell claimed to adhere to during the SCOTUS nomination in 2016, requires a variety of perspectives. Political procedure should not be deliberately changed to favor an agenda or a party. Without order and standards, the voice of the American people stands to be skewed and distorted within our government.