President Donald Trump recently claimed that Republicans have an obligation to fill Justice Ruth Bader Ginsburg’s (RBG) Supreme Court seat now. Senate Majority Leader Mitch McConnell has said that he will certainly bring President Trump’s nominee up for a Senate vote quickly.
Let us leave aside the twin facts that McConnell is not particularly interested in honoring RBG’s legacy and dying wish that she not be replaced until a new president has been installed.
However, given that he has a law degree, one would think McConnell would have some appreciation for stare decisis, the legal principle of determining points in litigation according to precedent.
One might argue that filling a vacancy in the Supreme Court is not a legal but a political matter. In this case, one would hope that McConnell would follow the precedent that he himself set in 2016 by denying Merrick Garland, President Barack Obama’s choice to fill Supreme Court vacancy, a hearing. According to McConnell, it would be imprudent to fill a Supreme Court vacancy in the last year of a president’s term and that the American people ought to decide who to fill an existing vacancy with through their choice of a President.
With less than two months to go before the 2020 election, McConnell’s 2016 argument ought to apply with even greater force now. But that is not how things are shaping up. In a manifest display of rank hypocrisy, McConnell and many other GOP senators such as Lindsey Graham have decided that when it comes to filling vacancies on the Supreme Court in 2020, previously stated positions do not matter because that was then and this is now.
Appointments to the Supreme Court
In the last two decades, two Republicans — George W. Bush and Trump — have secured the presidency even though they both lost the popular vote. George Bush made two appointments to the Supreme Court — John Roberts and Samuel Alito — and thus far, Trump has also made two: Neil Gorsuch and Brett Kavanaugh.
If President Trump is now able to make a third appointment, he will succeed in pushing the Supreme Court unambiguously to the right with conservative justices holding a clear 6-3 majority over the more liberal justices.
Note that because every state in the United States gets two senators irrespective of the state’s population, sparsely populated Wyoming has the same influence in the Senate as California, which is 68 times more populous. More generally, this means that the Republican majority in the Senate today does not represent a majority of Americans.
So, if the Mitch McConnell led Republicans in the Senate successfully push through President Trump’s third Supreme Court nominee before the presidential election on November 3, we will have a true tyranny of the minority.
In other words, a president who did not win the popular vote will be aided by a Senate that does not represent a majority of Americans in hypocritically pushing through a Supreme Court nominee with the power to significantly affect the lives of all Americans for many years to come.
If this state of affairs is allowed to pass, then we will not need either the Chinese or the Russians to sow doubts about our hallowed institutions and, indeed, our democracy. Americans themselves will begin to doubt the fairness of their institutions, particularly the anachronistic electoral college.
President Donald Trump and Senate Majority Leader Mitch McConnell may win a short-term victory with their nakedly self-serving tactics but this victory will be pyrrhic for sure.