Within hours of Justice Ruth Bader Ginsburg’s passing on Friday night, Democrats took to Twitter claiming that a parade of horribles will befall the country should Republicans “take” the seat. Some Democrats, including Representative Joe Kennedy, even threatened to retaliate by packing the Court with additional justices should the president move forward with a nomination. 

First, let’s start with the nomenclature. A president who fills a judicial vacancy is not “taking” the seat from anybody. Supreme Court seats do not belong to one party or another. When vacancies occur, the president has the constitutional authority to fill them with the “advice and consent” of the Senate. That’s how it works. 

There is nothing particularly controversial about a president exercising this authority. It wasn’t, in my view, inappropriate for President Obama to nominate Judge Merrick Garland to fill the vacancy caused by the death of Justice Antonin Scalia in 2016. Nor is it inappropriate for President Trump to nominate someone to fill the current vacancy. Nominating someone to fill a Supreme Court vacancy is, quite simply, a president’s constitutional prerogative.

As Dan McLaughlin wrote recently in National Review, there have been twenty-nine Supreme Court vacancies during election years, or during lame-duck sessions before the next presidential inauguration. In each case, the president nominated someone to fill it. Here’s McLaughlin:

George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.

But, wait!  Didn’t the Republicans refuse to confirm Garland in an election year? Yes, they did. That’s the advice and consent part. And it’s the Senate’s constitutional prerogative to determine whether or not to move forward with a judicial confirmation.  

Democrats, of course, claim that Republican refusal to move the Garland nomination during the 2016 presidential election cycle locks them in to the same course of action in 2020. Republicans respond that, unlike 2016, today the incumbent president is up for re-election, and the president’s party controls the Senate. History, they say, is once again on their side. True enough.  It seems that since 1900, there have been four confirmations during an election year when a second term is possible.

Here’s Amy Howe writing in 2016 on SCOTUSBlog: 

The first nomination during an election year in the twentieth century came on March 13, 1912, when  President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911.  The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six

President Woodrow Wilson (a Democrat) made two nominations during 1916.  On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Rucker Lamar, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two.  Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican.  On July 14, 1916, Wilson nominated John Clarke to replace him; Clarke was confirmed unanimously ten days later.

On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932.  A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932.

On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote.

On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Lewis Powell.  A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero.

Of course, none of this means that the Senate must confirm a presidential nominee in an election year. It simply confirms that it has the constitutional authority to do so.

Let’s also remember that the Republican Senate of 2016 is not the same Repubican Senate of 2020. For all the talk of constitutional norms and Senate precedents, this Senate is a different body than the Senate of 2016. And this Senate has the right to act (or not) as it sees fit. That’s how politics work. 

So, let’s stop talking about the Garland nomination as if it sets some sort of binding precedent. It doesn’t.

As for Court packing, principled liberals understand that threats to enlarge the Court undermine the Court’s institutional legitimacy. Nobody understood this better than Justice Ginsburg.  

“If anything would make the court look partisan,” Justice Ginsburg said recently, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’” 

Some Democrats counter by saying that  filling the Court with justices who share the president’s jurisprudential philosophy is Court-packing by another name.  They thus argue that any attempt to appoint a judicial conservative to the Court properly triggers a nuclear response, such as expanding the size of the Court.

This is incorrect. When the president and Senate act swiftly to fill judicial vacancies that arise in the normal course, they are exercising the legitimate role of the political branches of government in the appointment process. This is not the same tampering with a co-equal branch of government for political gain. 

To their credit, a few Democratic politicians have opposed Court-packing, arguing that it would set off a judicial arms race in which Republicans would retaliate by adding even more justices. As Senator Cory Booker once put it, if we pack the Court someday “our grandchildren will ask us: ‘Hey, granddad, why are there 121 people on the Supreme Court?’”

Let’s see who remains principled now.

Read IWLC’s Legal Policy Focus on Court-packing HERE and learn more about how threats to pack the Court undermine our democracy HERE and HERE.