William G. Ross, the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University in Birmingham, Alabama, analyzes the possibility of filling late Justice Ruth Bader Ginsburg's vacancy at the Supreme Court during the election period...
The tumultuous controversy about whether President Trump and the Senate should try to fill the late Justice Ruth Bader Ginsburg’s seat before the upcoming election presents high stake political and constitutional risks for both Republicans and Democrats. It also presents risks for long-term public confidence in the integrity of the Supreme Court.
Republicans can hardly be blamed for wanting to fill the seat before the election in case Trump is defeated for re-election and/or Republicans lose control of the Senate, and indeed there is no constitutional reason why the confirmation process could not proceed even on the eve of an election. With Biden leading in the polls and control of the Senate in the balance, however, Democrats naturally want to postpone the process until after the election.
In addition to helping to move the Court in a more “conservative” direction, Trump also might use the nomination to bolster his re-election prospects. In particular, the nomination of a woman almost surely will help him repel suspicions that he is not sufficiently committed to gender equality. President Eisenhower improved his election prospects in 1956 by giving a recess appointment to William J. Brennan three weeks before the election, which helped the Republican Eisenhower expand his political base insofar as Brennan was a Democrat, a Roman Catholic, and a Northeasterner. The nomination of a very “conservative” woman, however, might diminish Trump’s support among moderate voters, including women, particularly since the hearings would likely focus on social issues on which the divisions between the parties are sharper than they are on issues involving economics, foreign policy, or the virus containment measures.
The nomination of a highly qualified person might at least help Trump to the extent that it could ameliorate complaints that Trump is reckless and unwilling to appoint top-notch persons to high office. Trump’s nominations of Neil Gorsuch and Brett Kavanaugh, whose professional credentials are impeccable, helped burnish Trump’s image, and the nomination of a similarly well-qualified person could have the same effect.
The Republican attempt to move ahead with the appointment process only seven weeks before the election is, of course, at odds with the insistence of Senate Republicans in 2016 that the process to fill Antonin Scalia’s seat should be stalled for at least ten months because a Supreme Court vacancy ought not to be filled during a presidential election year. But neither party is known for its consistency when Supreme Court seats are vacant. Perhaps the most head-spinning flip-flops have involved the perennial controversy about the scope of the Senate’s constitutional duty to provide “Advice and Consent” for judicial nominations. When Democrats have held the Presidency and Republicans have controlled the Senate, Democrats have argued that the Senate owes a high level of deference to the President, while Republicans have advocated a robust role for the Senate in discharging its constitutional duty. When Republican presidents have sent Court nominations to Senates controlled by Democrats, Republicans have urged deference and Democrats have advocated careful scrutiny.
The most obvious disadvantage of moving the process forward before the election is that the Senate probably would lack sufficient time to adequately consider the nomination if it tried to vote before the election. Since 1975, the average time between a nomination and confirmation of a Supreme Court nominee has been 67 days, and the median time has been 71 days – already more time than the 48 days before the election. Senate confirmation hearings have become increasingly elaborate during recent decades. The Judiciary Committee never questioned nominees until 1925, and testimony of nominees was sporadic until 1955 and did not become comprehensive until the nomination of John Paul Stevens in 1975. The questioning process provides a unique opportunity for interaction between senators and nominees, and televised hearings provide a marvelous opportunity for countless Americans to better understand the process of constitutional adjudication. It would be unfortunate if this process were hurried or became even more of a platform for political grandstanding by senators than it already has become during recent hearings. Expedited hearings might not permit adequate time for thorough deliberation about a nominee’s views about controversial issues and also might not provide an opportunity for identification or consideration of the kind of ethical allegations that often have stalled and sometimes have quashed Supreme Court nominations.
Although the Senate could begin hearings before the election and conclude them afterwards, any consideration of a nominee in the hyper-politicized environment of an election campaign is likely to feed the growing public perception that the Supreme Court is overly politicized – a suspicion that the Court itself has encouraged insofar as at least eight of the Justices in the Court’s many five-to-four decisions often vote in a manner that almost perfectly mirror the political positions of the two major political parties, a reflection at least in part of the growing partisanship of the Supreme Court appointment process. This perception harms the Court. Possessed of neither the power of the purse nor the power of the sword, as Alexander Hamilton famously observed in Federalist No. 78, the Court ultimately depends upon the confidence and respect of the American people for enforcement of its often controversial decisions. Americans historically have looked to the Court to help resolve troubling constitutional issues through the adjudicative process in a more fair and objective manner than Congress or the President can achieve through the political process. Rambunctious confirmation hearings in which both parties used the Court as a pawn for scoring partisan points at the peak of the election campaign therefore could further erode respect for the Supreme Court, thereby jeopardizing the judicial independence and respect for the rule of law that are among the principal foundations of American government.
A high level of partisanship during the Senate Judiciary Committee’s hearings could particularly diminish public respect for the Court – and the Senate – if the nominee and Democratic senators engaged in rancorous exchanges, as occurred during the hearings on Kavanagh in 2017, when the nominee responded in a petulant and maudlin manner to hostile interrogation from Democratic senators who often seemed more interested in preening on television than in objectively and fairly probing the troubling allegations against the nominee, while some Republican senators seemed to lack sensitivity toward the gravity of the accusations of sexual misconduct. Another spectacle of this nature could cause some Americans to refrain from voting or tilt them toward the Green or Libertarian parties.
The politicization of the process is likely to be exacerbated because the irrepressible Trump is likely to make frequent comments about the confirmation process after he has made the nomination, unlike previous presidents, who generally have kept silent about their nominees unless their nominations encountered dangerous opposition. Although Trump probably would intervene during any confirmation process, his tweeting during a presidential campaign would exacerbate impressions that the nomination process is unduly political.
Defeat of the nomination obviously would create a serious political embarrassment for Trump that could harm him in the election, particularly because much of Trump’s appeal has been the strength he projects. With only a slim (53-47) Republican majority in the Senate, there is a real chance that the Senate might reject a nominee or at least stall the nomination until after the election. Moreover, if confirmation seemed unlikely, delay of a vote until after the election might help Trump because if he were defeated (or even if he were re-elected) he could make a recess appointment when Congress adjourned. Such an appointment would continue through the next session of Congress, late in 2021, when it would end unless she were re-nominated, which a Democratic President presumably would not do. There is still much puzzlement about why President Obama failed to provide a recess appointment for Merrick Garland in 2016 after Republicans refused to conduct hearings on his nomination.
Trump might, however, use a rejection to his advantage by derogating the Democratic senators for trying to politicize the Court by rejecting a highly qualified nominee. In 1969, President Nixon was able to wring some political advantage from the Senate’s rejection of his nominations of Clement Haynsworth of South Carolina and G. Harrold Carswell of Florida by claiming that the Senate was biased against Southerners, an allegation that may have enhanced his appeal among white Southern voters.
If Trump’s nomination reaches the hearings stage of the confirmation process before the election, 2020 may be the first time in history that the Supreme Court will have a prominent role in an election campaign. Despite the importance of presidential – and senatorial – elections in shaping the Court, judicial appointments generally have had only a small role in as an election issue, despite the efforts of various candidates down through the years to make the Court an issue. One of the reasons is that judicial issues are so complex that they are difficult for many voters to understand. Abortion may have been one of the few focal points of discussion about judicial appointments during recent presidential campaigns because the basic issue of abortion rights is fairly stark to most voters on both sides of the issue, despite the constitutional nuances. Most judicial issues, however, do not so easily lend themselves to the sound bites and hoopla that characterize modern election campaigns. During election campaigns for at least the past twenty years, both Democrats and Republicans have used the prospect of Court appointments primarily as way of energizing their bases and as a vehicle for fund-raising.
If the Senate votes favorably on the nomination before the election, the Court’s importance might affect voting less than if hearings have not yet been held or if hearings have been held without a vote since the election would not affect the outcome of the appointment. Although the Court might remain an election issue insofar as a hotly contested nomination on the eve of an election would provide a forceful reminder of that the election will affect the Court, the relatively young ages of the present Justices makes the prospect of another vacancy on the Court during the next four years less likely than it has been during most of the past several decades. Stephen Breyer (age 82) and Clarence Thomas (age 72) are the only Justices older than seventy.
Even if the vacancy remains open on Election Day, the appointment of a Justice might not affect voting as much as Republicans and Democrats might suppose. Most Americans who want a more “conservative” Court will vote Republican in any event, just as most who desire a more “liberal” Court will vote Democratic anyway. The Court’s composition may not matter to the masses of other Americans whose political views do not conform to the predictable partisan categories into which at least eight Justices have fit for the past several decades. For example, many persons who favor abortion rights oppose affirmative action, and vice versa; many who favor strict regulation of guns oppose leniency toward persons who entered the nation illegally, and vice versa; and many persons favor or deplore both the Court’s recent 5-4 decisions facilitating government financial aid to religion and its 5-4 decisions sustaining virus-related limitations on religious worship. For these voters, the election’s impact on the Court does not matter much because both a “conservative” Court and a “liberal” Court will render decisions that they both favor and oppose.
The interests of both the Court, the voters and both parties might best be served if Trump made a nomination that the Senate did not consider until after the election. This would avoid hyper politicized and hasty hearings but would provide voters with the nominee’s identity. Even in the absence of hearings, the voters would have at least a general sense of the kind of Justice the nominee would likely become. If Trump were re-elected, the Senate then could provide the nomination with the leisurely deliberation that it deserves. If Trump were defeated, Democrats might find ways to prevent Republicans from moving ahead with the nomination, although Trump might then make a recess appointment.
William G. Ross is the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University in Birmingham, Alabama, where his courses include Constitutional Law and American Constitutional History. His publications include various studies of the federal judicial appointments process.
Suggested citation: William G. Ross, Postponing Confirmation Hearings for the benefit of the Supreme Court and the Nation, JURIST – Academic Commentary, September 23, 2020, https://www.jurist.org/commentary/2020/09/william-ross-postponement-of-confirmation-hearings/.
This article was prepared for publication by Akshita Tiwary, JURIST’s Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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