Updated: Oct 12
In 1992, four months before the election, speculation arose that Supreme Court Associate Justice Harry Blackmun, the legendary author of the opinion on Roe v. Wade would retire before the election was held. (He retired in ‘94 and died in 1999.) Raising the issue of such a hypothetical situation, then- Senator Biden of Delaware rose to the floor and recommended that a nomination should not proceed until the election was over and a new president (whether it be President Bush or President Clinton) could nominate a justice.
In 2016, Senate Republicans cited this recommendation, made in assumption and conjecture, as a reason to deny a hearing to Judge Merrick Garland, nominated by President Barack Obama to replace Justice Anthony Scalia. At that time, the nomination had been submitted more than 9 months from the election and 11 months until January 20th, 2017. Such an unprecedented move, while sensible, drew criticism for its obstruction for several reasons.
First, Garland was the intentional, compromise choice, meant to serve as a moderate on the Court to appease Senate Republicans. Obama knew Garland’s reputation as a centrist and therefore sought to put a judge on the court who would be a bipartisan one. Instead, Senate Republicans held off such an appealing, sensible candidate in exchange for two conservative firebrands.
Second, even if they had held a hearing and heard the merits of the nomination, the Senate could still reject the nomination by a majority vote as Republicans were in the majority then and still are today. If the senators had indeed done so, and still felt it right to vote according to their party, they could have; and Garland’s nomination would have failed anyways. When President Trump won in 2016, history would have followed the same way as it has now. But instead, the Republican leader in the Senate, Mitch McConnell, chose to not even hold a hearing. He wanted the seat open until conservatives could make their move and take power in the court.
Third, there still remained sufficient time before the election for such a hearing and rejection to go forward. Since 1975, the average time from nomination to confirmation for SCOTUS appointments has been around 2 months. More than quadruple of that time remained until the election when President Obama submitted his nomination to the Senate. Yet the Republicans chose to delay, for months and months, until they could seize the moment and nominate Neil Gorsuch and Brett Kavanaugh. And now, they choose to ram through a nomination weeks before the election, when the country is already voting because they understand how important it is to have a justice who will rule in their favor before it is too late and the scepter of power is surrendered.
Fourth, to add on, almost any nomination to the Court that has occurred in an election year has at least received some form of action - whether to table it, reject it, or accept it. But inaction - to stoke overhyped fears of a liberal majority on the court - itself was an unfair manoeuvre that signified the complete ignorance of President Obama by the Republicans, and their willingness to prioritize partisan goals.
With this fourth point, surely there will be those making the case for the installation of Amy Coney Barrett following the death of Ruth Bader Ginsburg. But while the inaction of Mitch McConnell four years prior signified his prioritization of partisan goals, his action this time around signifies not only that, but also his fear of Ginsburg’s arguments becoming reality on November 3rd, 2020 and therefore his aim to procure as much power as possible to prevent such a possibility.
For the twenty years that Ruth Bader Ginsburg has served on the highest court of the land, her positions on cases became known for their part in monumental decisions. As an example, Ginsburg wrote the opinion of the Court on striking down several state laws restricting womens’ access to abortion. She dissented in the Hernandez v. Mesa case, which ruled that the family of a 15-year old boy shot and killed across the border from a US Border Patrol agent was not entitled to damages, and joined five other justices in proclaiming much of Eastern Oklahoma as Native American territory, just as it had been by the agreement of the United States. She supported restrictions on campaign finance and marriage equality. It was these dissents, opinions, and stances that she harnessed to do what was right that unsettled Mitch McConnell and conservative Republicans. Her service energized liberals and gave them a glimmer of hope in the repeated losses they faced and the frustration they confronted. She was the blue voice standing out in a sea of red, calling out what she saw as unjust.
Firing up liberalism in previously unseen areas on the risk of her potential inability to carry out her duties, and thus the loss of the progress made under her service, the 2018 midterms delivered a shocking result; suburbs in major metropolitan areas, which had previously backed Republicans, were now swinging towards Democrats for the first time in years, aligning with Ginsburg’s stance. White suburban women helped Democrats win back the House of Representatives through suburbs in states such as Illinois, Iowa, Arizona, Minnesota, Florida, Pennsylvania, California, and New Jersey. States such as Arizona, Michigan, or Wisconsin elected Democratic statewide officials for the first time in years. And for that first time in a colossally long time, the Republican Party seemed to be losing its electoral coalition heading into 2020. Then, the opinions of Justice Ginsburg seemed back on the path of becoming a reality.
With the COVID pandemic raging, the Republican Party’s support is fading even faster. Mitch McConnell is propping up the judiciary for a last-ditch attempt to fight the possibility of his defeat, whether through striking down liberal policies in the future or stopping the counting of votes before they have been completely tallied. McConnell plans to leave behind a conservative obstructive force to put an end to any Democratic policy to be enacted in the future and ensure the domination of the conservative minority. With a 6-3 majority on the Supreme Court, one of the only laws setting in place a step towards healthcare for those who cannot afford it will be repealed, and with no substantial replacement ever coming forward from the Republican Party, the damage will be done. As much as the youthful generation of conservative judges may claim to respect individual choice, they will not do so with women and their privacy, and nor with sexual minorities. Legislation designed to increase turnout for all demographics will be rendered useless, and politicians on both sides will choose their voters and not the other way around.
It is said that the road to power is paved with hypocrisy. No more is that true today than with the nomination of Amy Coney Barrett to become a Supreme Court Justice of the United States. It is a power grab, designed to entrench conservative power for decades to come and prohibit the opinions of Justice Ginsburg from coming to fruition.
In 1801, when the Federalists under President John Adams packed the courts with new Federalist justices in a lame duck session, the Supreme Court took the confirmations and threw them out. That is the right thing to do - that is the moral thing to do in order to prevent this hypocritical rejection of the defiance of the Republican vision. And with the Supreme Court itself the subject in question, it is up to the Senate, when the clerk begins calling the roll, to point their thumbs down and admit the pending rejection of the Republican Party.
Sammy Baek is a staff writer at The Incandescent Review. He is a junior in Naperville, Illinois. He is a 2019 Scholastic Art and Writing Awards National Silver Medalist, a finalist at the 2019-20 Chicago Metro History Fair Senior Division, and a finalist at the 2019 Martin Luther King Oratory Contest. He is currently a member of his school's Model UN club and covers history and politics for the Plvs Vltra blog. Follow its Instagram account @plvsvltra_sb.