A prominent talking point against the elevation of Amy Coney Barrett to the Supreme Court has been condemnation of the Republican controlled Senate for going forward with the Barrett confirmation in an election year when it refused to go forward with the Merrick Garland nomination four years earlier (see also “An open letter to nominee Hon. Amy Coney Barrett,” Inquirer, Oct. 23). There is no merit to that talking point.
As president, Barack Obama often responded to critique of his actions with “Elections have consequences.” When Ruth Bader Ginsburg passed away in September, had the president been a Democrat with a Democrat controlled Senate, there is no doubt whatsoever that we would have seen that president immediately put forth a nominee, probably from a short list submitted by NARAL, with expeditious confirmation from a Democrat controlled Senate notwithstanding an upcoming presidential election.
Similarly, had it been a Republican president who nominated a successor to Justice Anthony Scalia in 2016, with confirmation then to be decided by a Democrat controlled Senate, without a doubt the Republican president’s nomination would have gone nowhere in the Senate.
Democrats would have it that elections have political consequences only when they win those elections. In our constitutional democracy there are also such consequences when Republicans are the electoral winners, as we have seen following the deaths of Justice Scalia in 2016 and Justice Ginsburg in 2020.
Democrats, moreover, seem to have a propensity when they lose to seek to change the rules under which we have lived for more than 230 years. A vocal Democratic response after Hillary Clinton lost the 2016 electoral vote was to do away with the Electoral College. And President Donald Trump’s appointment of three Supreme Court justices has brought forth a Democrat proposal to pack the Supreme Court, no more valid today than when FDR tried to pack the Court in 1937, and a proposal to impose term limits on the justices, which would require amendment of the Constitution’s provision that Supreme Court justices “shall hold their offices during good behavior,” meaning “life during good behavior.”
I clerked for the same U.S. District Court judge as Ruth Bader Ginsburg and had the pleasure of meeting her once when she visited the judge’s chambers. As Justice Ginsburg moved into her 80s, with a history of cancer, President Obama, among others, urged her to retire from the Court so that he could nominate her successor and a Democratic controlled Senate could confirm his nominee. We have been given reasons why Justice Ginsburg chose not to follow Barack Obama’s suggestion. There exist other reasons as well. I leave it to others to sort out those reasons.