The big story today is big indeed: how and when the seat on the Supreme Court, now open because of the death of Justice Ruth Bader Ginsburg on Friday, will be filled. Senate Majority Leader Mitch McConnell (R-KY) announced within an hour of the announcement of Ginsburg’s passing that he would move to replace her immediately. Trump says he will announce his pick for the seat as early as Tuesday.
Democrats are crying foul. Their immediate complaint is that after Justice Antonin Scalia’s death in February 2016, McConnell refused even to meet with President Barack Obama’s nominee, Merrick Garland, on the grounds that it was inappropriate to confirm a Supreme Court justice in an election year. He insisted voters should get to decide on who got to nominate the new justice. This “rule” was invented for the moment: in our history, at least 14 Supreme Court justices have been nominated and confirmed during an election year. (Three more were nominated in December, after an election.)
There is a longer history behind this fight that explains just why it is so heated… and what is at stake.
World War Two forced an American reckoning with our long history of racism and sexism. Americans of all racial and ethnic backgrounds, all gender identities, and all levels of wealth had helped to defeat fascism and save democracy, and they demanded a voice in the postwar government. Recognizing both the justice of such claims and the fact that communist leaders used America’s discriminatory laws to insist that democracy was a sham, Republican President Dwight Eisenhower set out to make equal justice under law a reality.
Over the course of his eight years in office, from 1953-1961, Eisenhower appointed five justices to the Supreme Court, beginning with Chief Justice Earl Warren, the former Republican Governor of California, in October 1953. In 1954, the Warren Court handed down the Brown v. Board of Education of Topeka, Kansas, decision, requiring the desegregation of public schools. The decision was unanimous.
From then until Warren retired in 1969, the “Warren Court” worked to change the legal structures of the nation to promote equality. It required state voting districts to be roughly equal in population, so that, for example, Nevada could no longer have one district of 568 people and another of 127,000. It required law enforcement officers to read suspects their rights. It banned laws criminalizing interracial marriage. It ended laws against contraceptives.
Warren resigned during President Richard Nixon’s term, and Nixon chose Chief Justice Warren Burger to replace him. Burger was less interested than Warren in using the Supreme Court to redefine equal rights in the nation; nonetheless, he presided over the court when it handed down the 1973 Roe v. Wade decision striking down restrictive state abortion laws. The case was decided by a vote of 7-2, and the majority opinion was written by Justice Harry Blackmun, a Republican nominated, like Burger, by Richard Nixon. All the justices were men.
Americans opposed to the Supreme Court’s expansion of rights complained bitterly that the court was engaging in what came to be called “judicial activism,” changing the country by decree rather than letting voters decide how their communities would treat the people who lived in them. Rather than simply interpreting existing laws, they said, the Supreme Court was itself creating law.
When President Ronald Reagan took office, he attacked the idea of “activist judges” and promised to roll back the process of “legislating from the bench.” In his eight years, he packed the courts with judges who believed in “a strict interpretation of the Constitution” and “family values” and said they would not make law but simply follow it. Reagan appointed more judges than any other president in history: three Supreme Court associate justices and one chief justice, as well as 368 district and appeals court judges. Older members of the Justice Department who believed that the enforcement of the law should not be politicized were outraged when Reagan appointees at the Justice Department quizzed candidates for judgeships about their views on abortion and affirmative action. Reagan’s Attorney General Edwin Meese said that the idea was to “institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future presidential elections.”
George H. W. Bush followed Reagan, and his first nominee for the Supreme Court, David Souter, was confirmed easily, by a vote of 90-9. But his next nominee, for the seat of the legendary Thurgood Marshall, was a harder sell.
Clarence Thomas fit the Republican bill by believing in a strict interpretation of the Constitution. But he was rated poorly by the American Bar Association and had criticized affirmative action, making people leery of his support for the civil rights legislation Marshall had championed. Most damaging, though, was that an FBI interview with Anita Hill, a lawyer whom Thomas had supervised at the Department of Education, leaked to the press. In the private interview, Hill said that Thomas had sexually harassed her. The Senate called her to testify (but did not call the other women who had similar stories). One of the first in-depth public discussions of sexual harassment, Hill’s calm testimony revealed what sexual advances, often accepted by men, looked like to professional women. For his part, Thomas called it “a circus… a national disgrace… a high-tech lynching.”
The Senate confirmed Thomas by a vote of 52 to 48 in October 1991.
In the context of national anger over the hearing and the outcome, then-Senator Joe Biden, the chair of the Senate Judiciary Committee, on June 25, 1992, suggested that, if a Supreme Court vacancy were to occur, the Senate should wait until after the upcoming election to fill it.
“Politics has played far too large a role in the Reagan-Bush nominations to date,” he noted. "Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.”
This is the “Biden Rule” that McConnell cited as the reason he would not hold hearings on Merrick Garland’s appointment. There was no vacancy, no nominee, and no vote on any rule, not least because Biden didn’t call for one. He wanted to protect the Supreme Court from being further politicized.
So what is really going on? Republicans recognize that their program is increasingly unpopular, and the only way they can protect it is by packing the courts. By holding the seat open in 2016, McConnell could motivate Republican voters to show up for Trump even if they weren’t thrilled with his candidacy.
It worked. McConnell had held not just the Supreme Court seat open but other appointments as well, meaning that Trump has nominated, and under McConnell the Senate has confirmed, a raft of new federal judges. “You know what Mitch’s biggest thing is in the whole world? His judges,” Trump told journalist Bob Woodward. Faced with a choice between getting 10 ambassadors or a single judge, “he will absolutely ask me, ‘Please, let’s get the judge approved instead of 10 ambassadors.’ ” Trump has already appointed two right-wing Supreme Court justices and now, apparently, plans to nominate a third.
The 2016 McConnell rule that the Senate should not confirm a Supreme Court justice in an election year should now stop the Senate from confirming a replacement for Justice Ginsburg, but McConnell now says his rule only holds when the Senate and the president are from different parties. All but two of the many Republicans senators who insisted in 2016 that the Senate absolutely should not confirm a nominee in an election year have suddenly changed their minds and say they will proceed with Trump’s nomination.
This abrupt about-face reveals a naked power grab to cement minority rule.
Both of the last two Republican presidents—Bush and Trump-- have lost the popular vote, and yet each nominated two Supreme Court justices, who have been confirmed by the votes of senators who represent a minority of the American people. The confirmation of a fifth justice in this way will create a solid majority on the court, which can then unwind the legal framework that a majority of Americans still supports.
It’s not just the issue of abortion, for all that that’s what gets most press. On the agenda just a week after the election, for example, is the Affordable Care Act.