By Ralph Nader, Lou Fisher and Bruce Fein
Senate Majority Leader Mitch McConnell’s (R-Ky) principles are like restricted railroad tickets, good for this day and train only.
In 2016, Senator McConnell’s ten-month soundtrack in blocking a Senate vote on President Barack Obama’s nomination of Judge Merrick Garland to the United States Supreme Court was the need to listen to the American people through the ballot box. On February 23, 2016, for instance, Mr. McConnell sermonized: “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.” He further praised President Abraham Lincoln for exercising “restraint” by refraining from filling a Supreme Court vacancy created by the October 12, 1864 death of Chief Justice Roger Brooke Taney until after the forthcoming presidential election.
In 2020, on the heels of a Supreme Court vacancy created by the death of Associate Justice Ruth Bader Ginsburg and less than two months before a presidential election, Senator McConnell somersaulted: “President Trump’s nominee will receive a vote on the floor of the United States Senate,” even if Democratic nominee Joe Biden wins in a landslide and Democrats gain control of the Senate in November. In other words, Mr. McConnell’s new gospel for filling Justice Ginsburg’s seat is tantamount to “the American people be damned when Republicans control both the White House and the Senate.”
It is not that Senator McConnell loves principles less, but that he covets power more that he speaks with a forked tongue. That is why the Majority Leader engenders contempt for politicians or politics generally across a wide spectrum of the American people.
The constitutional case for deferring to the November electoral results in filling Justice Ginsburg’s seat is convincing. Appointments to the Supreme Court are lifetime. Appointees characteristically serve decades beyond the tenures of the Presidents who nominate and the Senators who confirm them.
Judicial review empowers the High Court to invalidate the handiwork of the political branches, which tugs against ultimate sovereignty in We the People of the United States. To diminish the distance between popular sentiments and the Supreme Court, nominees should ideally be selected by Presidents and confirmed by Senates who command contemporary popular support demonstrated by recent electoral success, which will be forthcoming on November 3.
Republicans should be sobered by the fate of the Midnight Judges Act of 1801, which sounded the death knell for the Federalist Party. In the 1800 elections, Federalist Party presidential nominee John Adams was crushed by Democratic-Republican candidate Thomas Jefferson. Congress also flipped from control by Federalist to control by Jefferson’s Democratic-Republicans.
Hoping to cling to power through the judicial branch, the lame duck Federalist Congress passed the Midnight Judges Act, which created 16 new federal circuit judgeships less than three weeks before the new Congress and Mr. Jefferson assumed office. All were quickly filled with Federalist appointees of President Adams before Jefferson’s inauguration. The Act, however, was soon repealed, the Federalist appointees had their judgeships abolished (which the U.S. Supreme Court upheld in Stuart v. Laird (1803)), and the Federalist Party never regained power.
The American people rebuked the Federalist Party for seeking to degrade the judiciary through partisan maneuvers. In 1937, those popular sentiments resurfaced in overwhelming opposition to President Franklin D. Roosevelt’s ill-conceived court-packing plan, which would have created six additional Supreme Court seats for him to fill.
Majority Leader McConnell’s plan to race President Donald Trump’s nominee to replace Justice Ginsburg through confirmation by November 3 seems unstoppable. At present, Senate Republicans hold a 53–47 majority over Democrats. Only two Republicans, Susan Collins (Maine) and Lisa Murkowski (Alaska) have voiced opposition to a pre-election vote to fill the Ginsburg seat. All the others are standing firmly behind the Majority Leader, including Utah’s Mitt Romney, Iowa’s Chuck Grassley, and Colorado’s Cory Gardner.
Majority Leader McConnell is rolling dice with the fate of the Republican party heedless of the lessons of the Midnight Judges Act of 1801 and President Roosevelt’s court-packing debacle. “Those who cannot remember the past are condemned to repeat it,” philosopher George Santayana warned.
Ralph Nader is a consumer advocate.
Lou Fisher is a Visiting Scholar at William & Mary Law School.
Bruce Fein is a constitutional lawyer and former associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan.