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The death of jurisprudence giant, Justice Ruth Bader Ginsberg, immediately brought the oncoming sense of political chaos. With less than fifty days until the Presidential Election, the country is fiercely divided on whether the Senate should vote to confirm President Trump’s nominee Amy Coney Barrettt. With four Republican senators needed to reject a vote, only Sen. Lisa Murkowski (R-AK) and Sen. Susan Collins (R-ME) have publicly announced that they were against a confirmation vote until Inauguration Day (Murkowski later announced she wouldn’t rule out a vote). While Collins (along with the Senate Democrats) currently support the decision of waiting to confirm the vacancy until after the election to “let the people decide,” this would turn the upcoming Presidential election into a referendum of RBG’s replacement that would be contrary to the founders’ philosophy of a Democratic-Republic, and would continue a damaging precedent created by the Senate’s decline of a confirmation vote for Merrick Garland in 2016. Following the death of Justice Antonin Scalia, President Barack Obama stated, “When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone. The Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court.” These words hold as much relevance in 2020 as they did in 2016.
America’s founders created a system of governance to protect its citizens from tyranny, in the form of a tyrant like King George III, as well as what John Adams termed the “tyranny of the majority.” James Madison focused on this democratic flaw in Federalist No. 10, “The purpose of the Constitution is to restrict the majority’s ability to harm a minority.” The Framers’ solution was a counter-majoritarian structure of government—the judicial branch—created to confine the majority opinion of the legislature within the boundaries of the Constitution. The four most powerful bodies of federal government were each selected a different way: The President, elected through the Electoral College; the Senate, elected by state legislatures (later overturned by the 17th Amendment); the House of Representatives, the only body intended to be elected directly; and the Supreme Court, nominated by the President and confirmed by the Senate. The Supreme Court was intended to be the only body which is not elected, but rather selected and verified by the other two bodies of two branches, neither of which were elected directly (the reason why the House does not vote to confirm). The purpose was to limit the influence of public opinion to the Supreme Court, because the judiciary is influenced only by the Constitution and precedent cases, not the will of the people. It is widely understood that the majority can be wrong, yet its wrongness can do little alone to prevent the willpower of the majority, which is clearly shown in the historical example of Jim Crow laws, which while reflected in state and federal laws, was heavily influenced by societal sentiments of racism. James Madison notes the power of majorities in Federalist No. 51, “If a majority be united by a common interest, the rights of the minority will be insecure.” Therefore, as George Will states in his book The Conservative Sensibility, it is necessary to have the will of the majority “policed by a non-majoritarian institution—the judiciary.” Because of the counter-majoritarian role the Supreme Court serves, it is counterintuitive to have a Supreme Court position decided by an election.
Senate Democrats are using the same argument that Senate Republicans used four years ago to decline a confirmation vote: that Scalia/RBG’s replacement should not be confirmed until “the people” had spoken through the presidential election. The problem with this argument is that the average voter is not as well-versed with the duties and role of a Supreme Court Justice as they are of the President. As George Will writes, “It was risible to assert that more than a negligible portion of the electorate had opinions about, say, constitutional originalism, or fidelity to stare decisis, or the proper scope of Congress’ power to regulate interstate commerce.” James Madison said in his analysis of ancient democracies in Federalist No. 58, “the larger the number, the greater will be the proportion of members of limited information and of weak capacities.” The theory behind Federalism is that people will be more educated in decisions which directly affect them. George Will wasn’t wrong when he said that “the average American expends more time becoming informed about choosing a car or television than choosing a candidate.” This is so poetically illustrated in the upcoming presidential election with buzzword insults like “Sleepy Joe” Biden and “Donald Trump is a White Supremacist” drawing more attention to the average voter than their public policy proposals. The Supreme Court clearly should not be influenced by politics, much less this demagogic campaigning.
For some voters there may arise the conundrum that their preferred presidential candidate does not share the same judicial values as them. I find myself as one of these voters—I plan to vote for Joe Biden, yet would undoubtedly prefer a judicial originalist that President Trump is likely to nominate, than a judicial activist from a President Biden. Of course, there is the counter argument that every presidential election is essentially voting for Supreme Court seats, as every president since the Grant presidency has nominated a Supreme Court Justice, with the exception of Jimmy Carter. However, I would argue that there is a difference between voting for future Supreme Court picks, and voting for a current vacancy. As a conservative, I can justify voting for Biden, as none of the current five originalist-leaning Justices are likely to retire or pass within the next four years—the oldest, Clarence Thomas, is only 72. But now with the current vacancy and calls for that vacancy to be decided by “the people,” I am persuaded to vote for Donald Trump, if only to represent my support for a judicial originalist (don’t worry, I’m still not voting for Trump).
Now, in order to conclude, I need to make a couple statements which seem obvious, yet, as Jonah Goldberg describes in his book Liberal Fascism, “are necessary in order to prevent any possibility of being misunderstood or having my argument distorted by hostile critics.” First, I am not arguing that the Senate should absolutely vote to confirm President Trump’s nominee, but rather that Trump’s nominee should not be disqualified on the basis of it being an election year. Trump’s nominee should be assessed by the Senate, and voted upon their qualifications for the Supreme Court, just as any other president’s nominee has been (or, in Merrick Garland’s case, should have been). Second, I have heard the argument that this vacancy will determine the fate of Roe v. Wade (1973), and that because of Trump’s public support for overturning that decision, it is critical that the vacancy be filled after the election. Aside from the argument I have previously mentioned of the dangers of the judiciary becoming modeled from the electorate, there are simply not five votes to overturn it; Justices Breyer, Sotomayor, Kagan, Roberts, and Gorsuch are opposed to overturning the decision, and it is likely that Justices Alito and Kavanaugh wouldn’t vote to overturn it either, referring to the case as “warranted respect”’ and “precedent”, respectively. Lastly, there is the argument that the election is less than fifty days away, thus there is little time for the Senate to conduct hearings for the nominee. This is a fair and reasonable argument, that if there is not time for the Senate to conduct a thorough review of the nominee, they should wait until the next term. However, this does not apply to our current scenario. The deadline for the Senate is not election day, but rather the day the 116th Congress ends—January 3rd, 2021. Even given the Senate’s usual ineptitude, three months should be more than enough time to properly conduct the hearings. Given this, the Senate has a Constitutional obligation to vote for Trump’s nominee on their qualifications for the Supreme Court.
