This past Friday, Ruth Bader Ginsburg, a Supreme Court Justice championed as a pioneer of women’s rights, sadly succumbed to metastasized pancreatic cancer. Mercifully, it took a day for the vultures to set in.
But by Sunday, President Trump was already promising a new nominee, and Senate Minority Leader Chuck Schumer was threatening to pack the Supreme Court next year unless the seat remains empty.
Almost everyone remembers the congressional standoff in 2016, when Republicans refused to confirm Merrick Garland, an Obama Supreme Court nominee. Senate Majority Leader Mitch McConnell cited the Biden Rule– a declaration by prominent Democrats in 1992 that presidents in their final year of office should not nominate new justices. Democrats cried foul-play, but they were just being poor losers. It was a winning hand, and McConnell played it perfectly. The Republicans ended up getting their seat on the Court and made the Democrats look foolish while they were at it. They had beat them with their own rule.
While it may have seemed like it at the time, that victory did not come without cost. Firstly, it pushed the Democratic platform to the radical point of court-packing. More importantly, however, it created a precedent. By playing the Biden Rule, the Republicans confirmed the rule’s precedential legitimacy and committed themselves to following the same rule, under penalty of being labeled hypocrites.
Now the time has come for the Republicans to choose. It seems the armies are already drawn up and prepared for another ruinous battle. Republicans seek to maintain and extend their Supreme Court majority– widely seen as a bastion of conservative values– while Democrats fear falling even further behind in their quest to win over the judicial branch. In classic style, both parties are willing to undermine past traditions and precedents and incur grievous political costs in order to win this power struggle. But, if the Republicans are smart, they will realize they do not need to sacrifice any governing traditions or their integrity.
Consider the potential Republican gains of winning this battle. I see two: stronger conservative court rulings and a safer conservative court majority. Both are unimportant gains. Republicans do not need a new seat on the Supreme Court. Conservatives hold the majority and adding to that will not do much to change the nature of the rulings. And, while increasing their majority is always a good insurance policy, Republicans are not in need of much insurance either; the oldest conservative justice (Clarence Thomas) is a full 15 years younger than Ginsburg was on Friday.
Now consider the benefits of delaying the nomination till after the election. Primarily, it is a good look. Not only is it a respectful and nonpartisan gesture, but the Republicans get to show that they still follow the rules. It puts them sharply in contrast with the Democrats, who now seek both to end the filibuster and pack the court. Not a bad tone for an election year.
Building on election-year benefits, delaying the nomination makes the court an election issue. To some degree this was already true, with Trump preparing lists of potential nominees and Biden swearing to nominate the first black woman, but the empty seat now makes the issue a reality. Based on polling, we know that the Supreme Court is a winning issue for Republicans. Conservative “never-Trumpers” that were on the edge may balk at handing Biden an empty Supreme Court seat.
Lastly, this is a rare chance for tradition-building. As the party that constantly laments the erosion of founding principles in government, the Republicans would do well to weigh this opportunity. Forestalling the Supreme Court nomination would cement the Biden rule as a new, non-partisan precedent. It would also make any infringement of the court’s sanctity by Democrats inexcusable in the minds of voters. The Republicans could even go as far as to negotiate a deal with the Democrats, agreeing to hold off on the nomination in exchange for the safety of the filibuster and the court.
Many Republicans feel that they have always been the party to abide by the rules whereas the Democrats have not. This can lead to the feeling that Republicans owe nothing, and so should promptly declare a nominee because the Democrats would do the same. However, to do so would be an abandonment of Republican claims to value a government limited by traditional founding principles. Republicans would be succumbing to a political system of legal opportunism and brazen power grabs. On the other hand, following the Biden rule, set as precedent by Mitch McConnell, would reinforce Republican principles of government. It would, in the national spotlight, paint clearly where the Republicans stand and lay bare the treachery of the Democrats, should they attempt anything underhanded next year.
Regardless, Republicans ought to tread carefully, noting the costs of fighting and the benefits of waiting. They should be especially aware of the keen eyes of a generation of young, new voters as they deliberate on their course of action. Besides, if all goes well in November, Republicans can have their Supreme Court seat after all. They can, indeed, have it both ways.
