The coming confirmation fight ― and potential responses to it ― threaten an independent judiciary

The U.S. Supreme Court building in Washington, D.C. (Image via U.S. Supreme Court website)

Justice Ruth Bader Ginsburg deserved a more dignified epilogue than the angry, absurd circus that is about to become a full-blown crisis as Republicans rush to confirm her replacement on the U.S. Supreme Court and Democrats ponder nuclear options to counter it.

Year after year, she beat back five diagnoses of cancer and continued to give her best to her country. She died Sept. 18 after the most valiant of struggles.

With her dying wish, the demure, diminutive jurist who was denied work at white shoe law firms and dedicated her career to smashing glass ceilings reportedly asked that her vacancy be filled by the winner of the Nov. 3 election.

Request denied.

Before Ginsburg was buried, President Donald Trump settled on Amy Coney Barrett, a conservative judge on the 7th U.S. Circuit Court of Appeals as her replacement. He is demanding Barrett’s Senate confirmation before Election Day – something Senate Majority Leader Mitch McConnell will try to accomplish with the minimum necessary complement of obedient Republicans.

But Trump took it even further, as is his wont, into his fantasy world of alternative facts and unfounded conspiracies, accusing Democrats of fabricating Ginsburg’s final request. By extension, he also labeled her granddaughter, to whom the justice dictated the request, a liar.  

Trump gives voice to subversive notions and sinister intentions that not even Richard Nixon, the only president forced to resign, dared utter publicly. That includes his scheme to cast doubt on the election then use the court to prevent his ouster.

He has dispatched legions of lawyers to swing states and those governed by Democrats to pre-emptively mount legal challenges to mail-in ballot systems established so people can vote without risking exposure to a worsening pandemic the president claimed would “disappear like a miracle.” His plan is that unfavorable results from those states will be challenged in court, no matter how scrupulously and securely the election unfolds, and be expedited to the Supreme Court where his handpicked partisans will already be seated and, presumably, assure him a five-vote firewall and four more years to consolidate his power.

The president’s bid to co-opt the American judiciary to his own ends means that what you’re about to see will make the personal bitterness and unrestrained partisan rancor of Justice Brett Kavanaugh’s 2018 Senate confirmation process look like an ice cream social. You’re already seeing it in McConnell’s stunning backflip from four years earlier when he refused to take up President Barack Obama’s nomination of Merrick Garland to succeed the late Justice Antonin Scalia on the specious pretext that filling a vacancy in the final year of a president’s term should belong to the winner of the upcoming election.

Assuming they can’t derail Trump’s nominee, Democrats are openly discussing “packing” the court, or expanding the number of justices and filling the additional seats with jurists more ideologically aligned with them. Article III of the Constitution directs Congress to set the number of seats on the Supreme Court, and that number has ranged from the original six in 1790 to 10 in 1863 before Congress set the current limit of nine in 1869. There it has remained despite President Franklin Roosevelt’s 1937 failed bid to have an allied Depression-era Democratic Congress pack the court to protect their New Deal programs from adverse rulings. So even if Democrats take the White House and Senate – which is hardly assured – and hold the House, history suggests court packing could be an uphill fight.

House Democrats have also whispered (stage whispers, actually) about possibly stalling the nomination by impeaching Trump for the second time this calendar year.

Neither option is impossible, but either would be difficult and mark a dramatic and destructive escalation in a process that has become increasingly combative for decades, at least since the Senate’s rejection of Reagan nominee Robert Bork in 1987.

“Impeachment is very unlikely to be effective. Court packing is more plausible, but it would be very dangerous to the court and its ability to exercise the power of judicial review if you get these persistent cycles of court packing,” said Ilya Somin, a professor in George Mason University’s Antonin Scalia Law School and an authority on the court.

The worsening clashes over court appointments mirrors society’s ideological polarization and tribalism.

“It’s getting worse and I don’t see it getting better,” said Tony Mauro, who covered the Supreme Court for 40 years with various news organizations before retiring from the National Law Journal last year. “It’s especially toxic now because of the Trump administration and all the infighting.”

“It’s partly because, more and more, the Supreme Court is viewed as a political institution just as the other branches of government are,” he said.

The stakes are even higher because federal judges are appointed until they die, retire or are impeached and removed. Congress has never ousted a Supreme Court justice. (The House impeached Justice Samuel Chase in 1804, but the Senate refused to convict and remove him.) That means that with a fortysomething appointee, a president can cement a political legacy for 40 years or more. Ginsburg, appointed by President Bill Clinton in 1993, died at age 87, and was the second longest-tenured justice behind Clarence Thomas, 72, a 1991 George H.W. Bush appointee.

One solution that has gained currency among legal scholars is replacing lifetime judicial appointments, something Somin says is unique to the U.S. federal system, with term limits. He is a term limits supporter.

The Constitution implies lifetime service for federal judges and justices but does not explicitly direct it. It says only that federal judges “will hold their offices during good behavior.”

“Something like 18-year nonrenewable terms would be desirable. That way, justices wouldn’t be trying to please a president and run for re-appointment,” Somin said.

Among the benefits of term limits are eliminating strategically timed resignations and age-based appointments, making presidents more comfortable appointing hexagenerians and even septuagenarians, he said. It would also help curb the problem of justices hanging on after they’re no longer up to the task physically or cognitively.

“That said, it would not end partisan conflict over the court. They’d still be there a long time and exercise a lot of power,” Somin said.

Open-ended appointments made a lot more sense to the Constitution’s 18th century framers when age 65 was considered cheating death and living into one’s 80s was not in the cards for most people.

When the founders talked about life tenure, life expectancy was like 50 years. People didn’t live that long. But now we live well into our 80s, 90s and beyond,” Mauro said.

Term limits is an idea that Mauro said he supports and that has gained broader acceptance over the years.

“I think it could happen, and I think it’s the right thing to do,” he said. “And 18 years sounds just right.”

That won’t come easily or soon enough to calm the imminent confirmation battle and the almost apocalyptic foreboding that attends it. It looms as a dangerous moment, an unpredictable flash point, at the most critical of moments for a nation more bitterly riven than it has been since the Civil War.

It’s not something Justice Ginsburg would want to see.

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