After the death of Justice Ruth Bader Ginsburg, President Donald Trump announced that he would respectfully wait until after her funeral to reveal his next nominee to the Supreme Court. That is the least Justice Ginsburg (a dedicated public servant, legal giant and loyal friend) deserves. Even Republicans like myself cannot and should not diminish her influence and legacy. However, with her death coming just weeks before the 2020 election, the ferocity of the political battle surrounding her replacement’s impending nomination is difficult to understate.
Many have expressed concern that the Republican-controlled Senate and conservative-leaning Supreme Court have too much power. To these critics of the American right, the country is becoming an unfair “tyranny of the minority.” A third Trump nomination to the Supreme Court only exacerbates these critiques. But these criticisms are either exaggerated or misunderstand the laws and political history of the United States entirely. For ethical and practical reasons, President Trump should make his nomination. Moreover, Senate Republicans must confirm his replacement for Justice Ginsburg before the Nov. 3 election.
First, it is essential to consider the supposed precedent set by Merrick Garland’s nomination in 2016. After the death of Justice Antonin Scalia, President Obama nominated Merrick Garland to the Court. Republicans refused to schedule a vote on his candidacy. Instead, since it was an election year, Republicans argued the next president had the right to fill Justice Scalia’s seat. With this in mind, Republicans would be hypocritical if they confirmed a replacement for Justice Ginsburg in the coming weeks. But Democratic politicians, who seek to replicate the Republicans’ 2016 actions, are hypocrites as well.
As the much misunderstood Niccolo Machiavelli once argued, hypocrisy is an unavoidable component of any political system. But that hypocrisy, Machiavelli expounded, can and should be tempered by a respect for justice (a position shared by Alexander Hamilton). The Constitution authorizes the Senate to advise and consent to judicial nominees. However, the Senate is not obligated to consent. They have the prerogative to deny a hearing or a vote if they so please. By adhering to completely legal nomination procedures enshrined in the Constitution, the GOP, despite apparent hypocrisy, is — both now and in 2016 — respecting our traditional notion of justice: the rule of law.
While the Democrats’ opposition to a Trump judicial nominee is lawful, many of their proposals, from making D.C. a state to the National Popular Vote Interstate Compact, are not. The Democratic Party seeks to undermine the Constitution — disregarding the rule of law entirely — so that the party may achieve its desired political outcomes. To preserve the Constitution as we know it, Republicans should take this opportunity to confirm a candidate faithful to our Founding Fathers’ constitutional views.
While Republicans like myself seek to conserve the government designed by the Founding Fathers, the American people as a whole will ultimately decide the country’s future. But if the mail-in voting fiasco in Pennsylvania is any indication, the Nov. 3 election could bring weeks of chaos and uncertainty.
That being said, those calling the 2020 election “unprecedented” have not read their history. Uncertainty surrounding a presidential election is nothing new. While typically the responsibility of the House of Representatives, the Supreme Court has twice been called on (in 1876 and 2000) to resolve an inconclusive presidential election. The 2000 election was particularly contentious, as a divided Supreme Court declared George W. Bush to be the winner.
All the changes to the voting process due to the pandemic are liable to create the conditions that produce disputed outcomes. The elections of 1876 and 2000 were both intensely competitive, and 2020 is shaping up to be in that category. The election will likely come down to eight states, most of which could see razor-thin margins between Trump and Biden. Moreover, these margins could see viable legal challenges to their legitimacy. These challenges could include lawsuits about the constitutionality of both mail-in voting and policies combating voter fraud.
An eight-member Court can legally hear cases surrounding the election. However, a 4-4 tie would defer to the lower court’s decision. Though perfectly legitimate under U.S. law, a 4-4 decision in an election case could rattle our constitutional structures and call the integrity of the results into question. No matter who wins the 2020 election, the American people deserve a decisive answer. Suppose a definite answer requires the inclusion of the Court. In that case, the Court should wield a firm majority when determining the result. Therefore, as a matter of practicality, Senate Republicans should confirm President Trump’s choice to replace Justice Ginsburg. Without this ninth member, the Court runs the risk of provoking an entirely unnecessary Constitutional crisis.
The death of Justice Ginsburg was a tragedy. We should mourn her with due respect and reverence. However, we cannot ignore the political maelstrom caused by her passing. President Trump should make his nomination to ease the storm, and Senate Republicans should consent to his nominee. The future of the Constitution and the integrity of our election are at stake.
Garion Frankel is a university studies junior and opinion writer for The Battalion.