The year 2020 just keeps on giving. Not only have we lost one of the towering figures in American legal history in Ruth Bader Ginsburg, the empty Supreme Court seat she leaves is yet another wild card in the most dangerous and chaotic political season in American history. It’s not an exaggeration to say that how her seat gets filled could be as consequential for the continued political health of the republic as the election itself.
I’m not going to bother with all the justifications being offered as to why it’s perfectly OK to fill a Supreme Court vacancy a month-and-a-half before a presidential election while it is political obscenity to fill one nine months before a presidential election. They are fig leaves, not arguments, and all the explanations boil down to “because we can.” The issue here isn’t fairness or consistency. It’s consequences. Filling that seat would be the most disastrous thing Republicans could do, not just to the country but to themselves.
There will be retribution
First, if Republican senators plan on doing any campaigning at all, it’s a near-certainty that any confirmation vote on a Supreme Court nominee would not take place until after the election. The current legislative calendar has 13 Senate work days scheduled between now and Nov. 3. If Republicans were to attempt to force through a Supreme Court nomination after they know they have lost the Senate, the political paybacks from the new majority will be incalculable. Democrats won’t just be looking for legislative victories, they’ll be looking to rub Republican noses in what they have done.
But even if Senate Republicans were to manage to vote on a nomination before Nov. 3, retribution would be swift, predictable and dire should Democrats seize control of both the Senate and the presidency. Here's the likely scenario.
On the first day of the new Congress, the Senate would amend its rules to eliminate the legislative filibuster. The size of the U.S. Supreme Court isn’t set by the Constitution, it’s set by statute, albeit a very long-lived statute that was last amended in 1869. So on the second day of the new Congress, a bill would be introduced to amend 28 USC 1 and increase the size of the court from nine to 15.
Within a month, the Senate would confirm two new Supreme Court justices with the rest following shortly thereafter. The conservative Supreme Court Dream Team wouldn't last a single term. It might not last long enough to decide a single case. Of course, The Great Supreme Court Betrayal would infuriate Republicans and make the fight over Obamacare seem like a pre-pandemic day at the beach. But that’s the nature of these things. Every new outrage is justified by the previous one and the cycle never ends.
I want to emphasize that these are not gauzy hypotheticals. If Republicans force a nominee from President Donald Trump onto the Supreme Court and Democrats win control of Congress and the presidency, the events I have described are the political equivalent of the physical law that every action has an equal and opposite reaction. There is simply no way congressional Democrats are going to smile ruefully at their Republican colleagues and let bygones be bygones. There will be retribution, and that retribution will be expressly calculated to teach Republicans the meaning of powerlessness. It won’t be pretty to watch. It won’t be good for the country. But it will happen, nonetheless.
No GOP advantage to rushing a vote
Once upon a time, senators of both parties understood the necessity of taking the long view. In 2005, when Republicans controlled Congress and the presidency, a bipartisan group of senators known as the Gang of 14 united to save the filibuster. They knew there was no such thing as a permanent majority and what went around would eventually come around.
But that was 15 years ago. And the vast majority of current Republican senators don’t want to appear to act sensibly. Regardless of what they might think in private, people like Ted Cruz are convinced that being seen as bellicose and unreasonable will endear them to the Trump fan base. The only two remaining members of the Gang of 14 are Susan Collins and Lindsey Graham.
Jolt to a traumatized nation: In Ginsburg death, America loses a titan of the law, trailblazer for women's rights
Fortunately, it only takes four sensible Republican votes to render this sorry spectacle of performative irresponsibility irrelevant. But there’s even a wrinkle with this. The Arizona Senate race between Democrat Mark Kelly and Republican Sen. Martha McSally is actually a special election. If Kelly wins, he could be seated as early as Nov. 30, and Democrats would need only three Republican votes to stop the train.
There is no advantage in rushing through a Supreme Court nomination, not even to appease Donald Trump. If Republicans lose the election, whatever they do will be undone by blunt force and it’s Republicans who will suffer the consequences. If the Republicans win the election, they can process the nomination at their leisure. If the Senate won’t refuse to take up this nomination for the good of the country, perhaps they’ll refuse to take it up out of naked self-interest. For once, being statesman-like is the easiest — and safest —thing to do.
Chris Truax, an appellate lawyer in San Diego and CEO of CertifiedVoter.com, is the spokesman for Republicans for the Rule of Law, a member of its legal advisory board and a member of USA TODAY's Board of Contributors.
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This article originally appeared on USA TODAY: Republican rush to fill Ruth Bader Ginsburg court seat invites disaster