Republicans should fill court seat

To the editor:

Every four years, commentators, journalists and political junkies like me await the proverbial “October Surprise.” It seems that this cycle, however, with the tragic passing of Supreme Court Justice Ruth Bader Ginsburg, we have been given a “September Surprise.”

Doubtlessly, how to fill this vacancy will prove to be the single most important issue of the 2020 election. Before Justice Ginsburg’s passing, the court had four reliably liberal members and four reasonably conservative members. Chief Justice Roberts is a toss-up, particularly on cases with special import. The next justice to fill this seat has the potential to tip the court decisively in the conservatives’ favor, or to hedge against such a majority. It is precisely these stakes that have led Senate Republicans to push to confirm a new justice before Nov. 3 and Democrats to object to this effort with exceptional vigor.

This should not be a controversial procedure. The Constitution empowers the president to fill judicial vacancies, with the approval of the Senate. There is no stipulation that the process is suspended during an election year. Nevertheless, filling this vacancy has become a primary point of contention. To give credence to their rather silly position, Democrats cite Senate Republicans’ refusal to confirm Merrick Garland, President Barack Obama’s Supreme Court nominee in 2016. It’s a silly position because the Senate has no obligation to confirm a nominee. While re-electing President Obama in 2012 may have seemed to endorse his judgment regarding judicial nominations, the election of a Republican Senate majority two years later expressed a desire of the voters to have conservatives check Obama’s judgment, as they did with Garland. Moreover, the re-election of a Republican Senate majority in 2016 and 2018, along with a Republican president in 2016, demonstrates that the people trust Republicans more than Democrats to appoint new justices.

One could object that this is just a political move, and they’d be right. Politicians aren’t elected to govern in a non-partisan fashion. Parties exist so the voters can have reasonable expectations regarding how their representatives will govern. Republicans don’t simply have the ability to push their agenda by sheer force; they have a mandate from the voters to do so. The American people elected a Republican Senate and a Republican president so they could govern in accordance with their expressed political philosophy. In other words, Americans haven’t merely elected conservative politicians but a conservative agenda.

Let’s also not forget that the politicization of the confirmation process has been driven largely by Democrats. Most of the justices nominated by Presidents Franklin Roosevelt, Harry Truman, John F. Kennedy, Lyndon Johnson and Bill Clinton were confirmed by acclamation, and nearly all that weren’t received an overwhelming majority of Senate votes. The only exception — Thurgood Marshall — won tremendous Republican support and only half of Democratic votes. In contrast, the nominations of Presidents Richard Nixon, Ronald Reagan, George H.W. Bush, George W. Bush and Trump have been considerably more contentious. Democrat-controlled Senates rejected three Nixon and Reagan appointees in partisan fashion. Conservative jurist William Rehnquist faced significant Democratic resistance during his associate and chief justice nominations, and fully half of the Democratic Caucus voted against Chief Justice John Roberts. Sitting Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh were all confirmed essentially along party lines.

Granted, plenty of recent Republican nominees have received huge bipartisan support, but of those only Antonin Scalia and (maybe) Lewis Powell have adjudicated conservatively. Sure, both of President Obama’s nominees were confirmed along party lines, but only after Democrats had deeply ingrained the precedent.

And, of course, blocking Garland’s confirmation vote was an overtly political move. The judicial confirmation process may now be thoroughly political, but frankly I’m all for it. Conservatives didn’t establish this precedent, but now that it’s a fact of politics it should be utilized with extreme impunity. There’s no reason for Republicans to vote without regard to political considerations when the Democrats have made it clear that political ends are their chief concern.

Republicans have the votes. They have the mandate from the people.

They should fill this seat and let the Democrats stew in their apoplexy and hypocritical sanctimoniousness.

Kyle Orr

Muncie