There is much talk about whether the Republicans should try to fill the Supreme Court vacancy created by the death of the late Justice Ginsburg. And much of it misses the point.
Leave aside the diversions about not filling vacancies during an election campaign or leaving it to the next president. Justices are appointed through a characteristically American political negotiation between the President and a Senate majority. If by chance they are in strong agreement, then it is nolo contendere.
The Democrats are entitled to be grumpy that the laws of chance have not worked in their favour. But politics does not have much room for ‘our turn now’ arguments, particularly when there is no indication that they would keep playing by the rules.
What is most interesting is why the Republican senators seem to be unusually disciplined in wanting to fill the vacancy in spite of possible consequences. Sure there is deep respect among them for the nominee Amy Coney Barrett (see here for praise from the civilized Ben Sasse) but that is to beg the wider question.
As always, let’s go back to Trump and his role as disruptor of the Republican coalition. He is an outsider, challenging the status quo.
One aspect of this is a much sharper appreciation of the institutional dynamics of the Supreme Court. Republicans have appointed umpires to referee executive and legislative branch decisions, and to their surprise they find the umpires have been going by a different script than expected.
Richard Epstein (legal scholar but hardly an orthodox Republican) puts it so:
“ … defections from the conservative five [Supreme Court Justices] are more frequent than those from the liberal four: think of Chief Justice Roberts’s critical vote to first sustain the Affordable Care Act in 2012 in NFIB v. Sebelius, and then his 2015 opinion in King v. Burwell, allowing enrollees in federal plans under the ACA to receive tax deductions; of Justice Anthony Kennedy’s 2015 decision in Obergefell v. Hodges, giving constitutional protection for same-sex marriage; and Justice Gorsuch’s 2020 opinion (joined by the chief justice) in Bostock v. Clayton County holding that Title VII of the 1964 Civil Rights Act protects both gay and transgender employees.”
He could have added Chief Justice Roberts’ decision blocking Trump’s efforts to scrap Obama-era immigration policy which we wrote about back in July.
The American system is designed to make it hard for temporary office holders to exercise not just supreme power, but to do just about anything. Negotiated consensus is often required with the default being ‘do nothing’. (And helpfully there is a galaxy of different state and local jurisdictions providing internal immigration options for the politically irreconcilable.)
If the court consistently resolves deadlocks in favour of one particular school of political orthodoxy, it can’t help but influence the political negotiations.
Republicans have been forced to do some hard thinking and have concluded that they don’t seem to have done all that well from the court’s particular and expansive treatment of government powers. Hence, a much stronger and unified political commitment on their part to appointees with a clear philosophy of judicial restraint inside a historically-orthodox reading of the US constitution.
And it’s worth remembering that the Democrats don’t necessarily lose that much by having a court more committed to this school of umpiring. Not only do they get to win a few (reread that Epstein quote above) but they still get the chance to impose their policies through the regular political process.
So let’s see how far they take the La Patrie en danger ideas being thrown around, like creating new states of the union from Democratic strongholds or promising to pack an expanded future court with reliable judges. That would be a bold statement of confidence that America is really committed to their agenda and has lost its appetite for checks and balances.
Although he doesn’t endorse this extreme stuff, Epstein (again) concludes that Republicans will lose electorally in November by filling the vacancy. He could be right of course. But the party – and its potential supporters – have spent a generation coming to this point, so it looks like they are going to test that proposition.