President Donald Trump and Senate Majority Leader Mitch McConnell wasted no time after Justice Ruth Bader Ginsburg died, immediately announcing their intent to nominate and confirm a replacement. Tempting as it is for Republicans to install a third Supreme Court justice during Trump’s first term, it would nevertheless be a serious mistake — and potentially a historic one — for Senate Republicans to go along. The result would not only likely be the long-term erosion of the Supreme Court’s legitimacy as a third branch of government, but also a backlash so strong it would hurt the Republican Party itself.
The reason for Republicans to hold off isn’t the extraordinary hypocrisy they’re showing by pushing a rapid confirmation now, despite holding Justice Antonin Scalia’s seat open in 2016. Unfortunately, we don’t live in a world where voters will punish a party for arrant hypocrisy. Republicans and Democrats alike all understood that McConnell was making a specious argument when he claimed the March nomination of Judge Merrick Garland was too close to the November election to deserve a vote. We all knew it was power politics then; and we all know it is power politics now.
To be clear, Trump has the constitutional authority to nominate a new justice right now and the Senate has the authority to vote — or not vote — on that nominee. The arguments pro and con are moral and political, as I’ve noted before, not legal.
In a rational version of Senate confirmation politics, the party in the majority thinks about how its actions will affect the other party when it takes control. Ideally, that norm leads to balance and some fairness: I don’t take advantage of you so that in turn, you won’t take advantage of me.
In our current world of power politics, the norms have eroded to the point of near-disappearance. What that leaves is medium-term self-interest about what the other side will do immediately, as opposed to what both sides would do if norms of fairness applied.
The self-interested reason Republicans shouldn’t confirm Trump’s nominee in short order is that it will create a potential backlash that could have disastrous effects for Republicans. If a conservative fills Ginsburg’s seat, and then the Democrats win the presidency and both houses of Congress in November, an outraged, left-leaning Democratic base will pressure Democratic leadership to do things leadership would never otherwise have considered.
The most obvious is that left-leaning Democrats will push their leadership to pack the Supreme Court by adding new seats and filling them with progressive justices. Until now, when the left of the Democratic Party has talked about court packing, moderates have pushed back strongly. They may change their tune if Ginsburg is replaced by a conservative before the election. That will place enormous pressure on Joe Biden, who — before Ginsburg’s death — made it clear that he opposed packing the court, because it would lead to an arms race in which the legitimacy of the court would ultimately be undermined.
So say Biden caves to the pressure and installs two, or three, or even four new justices on the Supreme Court. This would delegitimize the Supreme Court, which would be bad for the country as a whole. But it would also be bad for conservatives, who might find themselves stuck living under three Democrat-dominated branches of government for some time.
The other danger to Republicans is probably even deeper. Democrats enraged by a quick confirmation of a conservative might be motivated to admit Washington, D.C. and Puerto Rico as states — each with their own (presumably Democratic) senators. Constitutionally speaking, this can be done with a bare majority of both houses and the presidency. Four more Democratic senators (or even three out of four, if Puerto Rico elected one Republican) could change the balance of the Senate over the long term.
Of course, admitting D.C. and Puerto Rico as states would represent a significant change from the tradition of maintaining some Senate balance by admitting Democratic- and Republican-leaning states at the same time. And to do it, Democrats would have to eliminate the filibuster. But progressive Democrats are already angry enough to do that, and a quick vote to confirm Ginsburg’s replacement could enrage moderates enough to join them.
Senate Republicans therefore have to calculate whether they would be better off confirming a conservative justice and risking these consequences or delaying until after the November election and confirming a Trump nominee only if Trump wins re-election.
In our current political moment, only rational Republican self-interest can stop the Trump-McConnell juggernaut. Republicans had better start thinking about whether the road they’re walking is taking them to a destination they really want to reach.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
