CAMBRIDGE, Mass. (Tribune News Service) — The news that Justice Ruth Bader Ginsburg is being treated for a recurrence of cancer is striking terror in the hearts of liberals.
As long as she is physically able, the resolute, gutsy Ginsburg will stay on the Supreme Court until there is a Democratic president and a Democratic majority in the Senate. But what if, in the worst-case scenario, Ginsburg’s health forces her out before President Donald Trump’s term in office is over? Worried liberals have been asking me if there’s anything Senate Democrats can do to prevent Trump from getting a third Supreme Court pick in his four years in office.
I can’t give them a very comforting answer. If Ginsburg should leave while Trump is still president, it seems overwhelmingly likely that Trump would nominate a replacement more or less immediately — and that the replacement would be a staunch conservative. And Senate Majority Leader Mitch McConnell would likely act quickly to get that person confirmed.
Once the president nominates a justice, it falls to the Senate to confirm the nominee according to its own discretionary timetable. As we all know, McConnell exercised that discretion on behalf of his caucus by refusing to hold hearings for a vote when President Barack Obama nominated Merrick Garland to fill Justice Antonin Scalia’s vacancy after his sudden death. As a result, Trump got to fill that seat. Now, one would expect McConnell to go to the opposite extreme and push for a rapid confirmation of Trump’s nominee.
We are accustomed, in our current era, to somewhat lengthy confirmation hearings for Supreme Court justices. But these are in no way required by the Constitution, which merely says the Senate has the power to advise and consent on Supreme Court nominees. Formal hearings weren’t even conducted until the nomination of Louis Brandeis in 1916. And no nominee appeared before the Senate in person until Felix Frankfurter in 1939, who chose to appear to fight anti-immigrant slurs against his character.
To give you a sense of how quickly things used to go, President Franklin Delano Roosevelt nominated then-Senator Hugo Black on a Friday. He was confirmed just a few days later, on Wednesday — despite the fact that over the weekend, rumors of his membership in the Ku Klux Klan were beginning to fly around Washington. (Those rumors turned out to be accurate, but by the time this was publicly confirmed, Black had been appointed to his lifetime position.)
If we do see a vacancy on the court in the next few months, Senate Democrats would be sure to pull out every procedural barrier they can dream up. The trouble is that, with a Senate majority, McConnell could block any maneuver, including a filibuster. The only question would be whether 51 senators would be prepared to get on board with a rushed confirmation. The usual handful of “moderate” Republicans would be called on by Democrats to exercise discretion and good judgment. It seems unlikely that such begging would succeed.
If any Supreme Court vacancy should occur after the November election, and should Trump lose that vote, the Democrats could argue that to allow him to name a new justice would go against the will of the people. But that argument would be moral and political, not legal. The president remains the president until the next president is sworn into office. Lame duck Senators are still Senators in the eyes of the law.
The only silver lining for worried liberals is that, short of impeachment, there is no constitutional mechanism for removing any justice from office without her consent. Whether Ginsburg is able to perform her duties is a matter that the Constitution gives squarely to Ginsburg, and her attitude toward quitting seems to mirror that of Justice Thurgood Marshall. He began to ail during the twelve years of the Ronald Reagan and George H. W. Bush administrations and supposedly joked to his law clerks that if he should happen to die, they should “stuff me, prop me up, and keep on voting.”
In the past, unwritten norms of behavior guided both political parties. For the most part, the majority party respected the prerogatives of the minority party. The most prominent example of the Senate’s mutual courtesy play was the filibuster. This was not idealism. Both parties were operating on the understanding that they would want to be extended this courtesy when they were in the minority.
That world is now gone, replaced by pure power politics in the realm of judicial nomination confirmation. You can guess my takeaway: Pray for the health of RBG — and of the republic.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.” Distributed by Tribune Content Agency. © 2020 Bloomberg News.