It’s been nearly two weeks since Ruth Bader Ginsburg’s passing, and the battle for the Supreme Court has simmered to a boil after President Donald Trump nominated Judge Amy Coney Barrett to take replace RBG on the bench.
With a vacancy in the Supreme Court not 40 days before the election, there is a lot of contention over whether the senate should confirm a new nomination.
There has been a history of this occurring — Supreme Court Justices dying during an election year and then being replaced within that same year. However, in most cases, considering the proximity of an election wasn’t usually a factor.
This didn’t become a precedent until 2016, when former Associate Justice Antonin Scalia died in February of that year, 270 days before the election.
President Obama had nominated Merrick Garland hours after his passing, and in response, Senate Majority Leader Mitch McConnell (R-Ky.) claimed that the senate would not appoint a new justice until after the upcoming election. He believed that it was “too close” to the election, that the next president should choose.
“The American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent,” said McConnell in 2016.
So what’s changed?
McConnell claims that precedent does support this push, so why flip-flop?
Why outright ignore the nomination of Merrick Garland — a moderate judge, significantly closer to center than the Obama Administration — and suddenly call for the rapid-fire appointment of conservative darling Judge Barrett? Why push for a new justice 40 days before an election, and deny another nearly 300 days before another.
Simple: it’s because party matters more than country.
The Supreme Court was designed by our founding fathers to be the branch furthest detached from politics. Rather than appoint people based on their ideology, Justices are selected, in theory, based on a number of factors, including understanding of the Constitution, experience in law, etc.
However, recent appointees like Associate Justice Brett Kavanaugh are incredibly partisan. Rather than choose them based on their experience, President Trump is turning to packing the court with ideologues.
I find this to be incredibly dangerous, for a number of reasons.
Firstly, party loyalty will matter more than constitutionality. Justice Kavanaugh is a perfect example, as he rarely deviates from the vote of conservative block of the court. Contrast this with former Supreme Court Justice Anthony Kennedy, a Reagan nominee, who would vote with the conservative bloc on some cases, and with the liberal on others (see: Obergefell v. Hodges ).
Secondly, the court will become incredibly unbalanced. Prior to Justice Ginsburg’s death, the court stood at a 5-4, conservative to liberal ratio. This is the closest the court will come to balance, regardless of ideology.
Putting Judge Barrett on the court will tip it to 6-3. Justices serve for life, meaning it’s going to take a very long time to bring the court back into balance. And if President Trump gets re-elected, well let’s just say that Associate Justice Stephen Breyer, a liberal justice of the age 82, has a high chance of passing during the next term.
I shudder at the thought of having a Supreme Court that stands at 7-2 ratio, especially when issues such as reproductive health care, LGBTQ+ rights, racial equality and more are at stake.
My biggest fear comes from the senate appointing Judge Barrett, and then in November, President Trump loses the election.
According to several polls shown on FiveThirtyEight, former vice president Biden is leading over Trump by large margins. There are many signs pointing to a Biden-Harris victory on Nov. 3 — landslide or not.
If they win, President Trump will not concede without a bloody, ugly fight.
When all else fails, The Supreme Court has the final say in everything — including elections. If President Trump takes his loss to the court, he will likely win and reclaim the presidency. This would be largely due to the fact that the court would be too partisan, too conservative and too indebted to the sitting president (as three of the nine justices would be Trump nominees).
Mitch McConnell is playing a very dangerous game with the Supreme Court. If I were him, I’d listen to the people, who are rallying against this decision, and hold off on any new nominations until after the next Inauguration day. Otherwise, America will be hurtling toward a political nightmare.