To Fill or Not to Fill?

To fill or not to the fill the seat of the Supreme Court, that is the question.

On September 18, 2020, what was already a highly polarized and heated election year in the United States exploded into more chaos when Associate Justice Ruth Bader Ginsburg passed away due to complications from pancreatic cancer. Within only a few hours, Senate Majority Leader, Mitch McConnell announced that President Donald Trump’s Supreme Court nominate would be considered for a vote on the Senate floor. In Article II, Section II, Clause II of the United States Constitution, the President of the United States is granted the right to nominate someone to the Supreme Court of the United States (SCOTUS), and the U.S. Senate is granted the right to confirm or not confirm the President’s nominee. So what is all the fuss about?

Rewind the tape back to 2016, the year Associate Justice Antonin Scalia passed away, and President Barack Obama nominated Merrick Garland to fill his vacancy. At this time, Senate Republican and Senate majority leader, Mitch McConnell refused to approve Merrick Garland’s nomination to the Supreme Court. McConnell and other Republicans argued that it has been historical precedent not to accept the President’s nominee during an election year, while nearly all of their Democratic colleagues argued that the SCOTUS seat should be filled immediately, regardless of it being an election year. Fast forward to 2020, when another Supreme Court vacancy has occurred less than 8 weeks before the election, and now Democrats are declaring that another Justice should not be added to the Supreme Court until after the elections. Since the days after the death of RBG, Democrats have decried Mitch McConnell and Senate Republicans as being hypocrite, and have stated that the election on November 3rd is a battle between democracy and tyranny. Many people have taken to social media to condemn the supposed “authoritarian” and “fascist” nature of the GOP for not following by the same rules they applied to the Democrats in 2016. But is this really this case — obviously not.

Let us first take a look at the precedent the GOP had referenced in 2016. Up until and including 2016, the President has nominated someone to the SCOTUS a total of 29 times during an election year. Of those 29 times the President has put forth a SCOTUS nomination, the party of the President and the party of the Senate has been the same 19 times. Out of those 19 times the parties have been the same, the Senate confirmed the nominee 17 times (89% of the time). Out of the remaining 10 times when the parties of the President and the Senate have been different, the Senate only confirmed the President’s nominee 2 times (20% of the time). As we can see, there is an overwhelming historical precedent of not confirming the President’s SCOTUS nominee during an election year when the majority of the Senate is of a different party than the President, and there is an overwhelming precedent of confirming the President’s SCOTUS nominee during an election year when the majority of the Senate is of the same party as the President. In other words, this is nothing new.

So, is this a classic game of ‘these rules apply for thee, but not for me’? Definitely not. The rules were the same in 2016 as they are in 2020, and those rules lie in the U.S. Constitution. The Constitution definitively states that the President has the power to nominate someone the SCOTUS, a Constitutional right President Obama exercised in 2016. No one took that right away from him. At the same time, the Senate has the Constitutional right to confirm or not confirm the President’s nominee. The Senate exercised its right in 2016 to reject the President’s nominee, and it will (and should) exercise its right to accept the President’s nominee in 2020. The same rules that applied to the President and the Senate in 2016 apply to the President and the Senate in 2020. Neither the Executive, nor the Legislative branch hold sole control over the nomination and confirmation process of a Supreme Court justice. This is part of the separation of powers and checks and balances the Founding Fathers implemented into the Constitution to prevent tyrannical rule; this is precisely the same checks and balances the U.S. Senate is utilizing; and it it is the same checks and balances the Democratic party hates just because it is not working in their favor. It is the epitome of irony that the Democratic party lambasts the Republican party as tyrannical fascists when they seek to destroy all institutions of checks and balances that have been created precisely to disrupt tyranny, whenever these institutions act as roadblocks on their road to seizing absolute power. The left’s assault on these institutions aren’t just limited to the nomination and confirmation process of a justice to the Supreme Court. They attack the Electoral College when they are only able to win a popular vote in a Presidential election; they use the Supreme Court to legislate from the bench when they cannot ratify Constitutional amendments to guarantee a right to an abortion; and they selectively choose to restrict the rights to freely practice one’s own religion in a Church, Mosque, or Synagogue while not restricting the rights of people to protest in hundreds and thousands while attempting to control the spread of a pandemic. At the same time, this party has the audacity to claim that the other side is fascist or fascist enabling. It is disgusting, deplorable, and absolutely dangerous.

In summation, both the President and the Senate are officials elected on behalf of American citizens. Both the Executive and the Legislative branch have the authority to exercise their Constitutionally given rights. The President is guaranteed the right to nominate a Supreme Court Justice; he is entitled to that and nothing more in regards to the Supreme Court. He is not entitled to the U.S. Senate to confirm his nominee. When President Donald Trump nominates his Supreme Court pick over the next couple of days, the Senate will still have the same Constitutionally given right to confirm or deny that nominee as they so choose. You may not like who the nominee is, but make no mistake that the Constitution gives these powers to the President and the Senate, and to claim that nominating and confirming another Supreme Court Justice is a Constitutional crisis or an attempt for tyrannical control is fundamentally incoherent, ahistorical, and blatantly wrong. The President of the United States has the right to nominate someone to the highest court of the land, and the Senate has the unquestionable right to confirm his nomination. The American people voted in 2016 to elect a Republican president and to keep the U.S. Senate majority Republican, and they voted in 2018 after the long and grueling confirmation of Justice Brett Kavanaugh to increase the Republican majority in the Senate. Therefore, assuming that the President’s nominee is competent and qualified, the Senate has the right – and the obligation – to confirm the President Trump’s nomination before the election. The American people spoke in 2016, and again in 2018; they want a Republican President to nominate a Justice, and they want a majority Republican Senate to confirm said Justice. Fill the seat.

Written by Nicholas Ramirez