Importance of Court Overblown

Supreme Court Justice Ruth Bader Ginsberg’s death has roiled America’s politics in midst of a presidential election, setting up yet another fight over control of the nation’s highest court. Ironically, conservatives already have a 5-3 majority on the US Supreme Court and nothing is likely to prevent Donald Trump and Senate Republicans from enhancing that margin.

What are the stakes here? Is the future of the republic truly at risk?

Obviously, Trump is claiming the Ginsberg vacancy has created the chance to secure conservative dominance of the judiciary for the foreseeable future and he has been crucial to that opportunity. Unmentioned by Trump, but clear to all is that the Ginsberg vacancy offers a means for him to shift the focus of the presidential campaign from his administration’s shortcomings with regards to the pandemic and the economy. More than 209,000 deaths and more than 30 million people unemployed do not make a strong case for re-election.

Trump’s nominee to replace Justice Ginsberg has all the usual credentials Republican judicial appointees have possessed during the past three decades. Amy Coney Barrett is openly anti-abortion and appears to have strongly conservative views on most issues, including healthcare, consumer protections and workers’ rights. She has little experience in private practice, having spent most of her legal career as an academic, primarily on the law faculty of her alma mater, Notre Dame.

Barrett currently sits on the Seventh Circuit of the US Court of Appeals. She was nominated by Trump and confirmed by the US Senate in October 2017. This is her sole experience as a judge. Barrett calls herself an “originalist.” She clerked for and is an admirer of the late Justice Antonin Scalia.

Despite the thinness of her credentials, Barrett is likely to be confirmed since Republican Leader Mitch McConnell exercises iron control over his GOP majority.  Senate Judiciary Committee Chair Lindsey Graham (SC) even said last week that all committee Republicans will vote for the president’s nominee—not waiting to learn who that nominee was. So much for the “separation of powers.”

Graham, like several other GOP senators facing re-election, may also view the upcoming hearing as an opportunity to reboot his campaign. It has been tough to defend chaotic responses to the pandemic and its economic fallout by Trump and Senate Republicans. Allowing federal relief aid to expire is difficult to justify in face of the hardships weighing down millions of Americans.

What should be the public’s reaction to this sham process?

First, we must recognize the addition of another conservative Republican to the Court is a done deal. Barrett will be confirmed. She may not be your choice, but Senate Republicans have the votes and no apparent inclination to change their collective mind.

Democratic senators should also recognize this fact. Launching into lengthy soliloquies about the injustice of it all or trying to bully the nominee into revealing her suspected bias will not derail the train. Such tactics will merely allow Graham and his GOP colleagues to drag out the hearing and distract voters from the campaign at hand.

Second, just how much does it matter that the GOP will have such dominance on the Court? Having an outsize majority of justices appointed by one party has happened before.

When Franklin Delano Roosevelt assumed office in 1933, the Court was more divided.  Seven justices had been appointed by four Republican presidents and only two by a Democratic one. And in view of complaints that Ginsberg’s death allows Trump to appoint three to the Court, note FDR’s predecessor, Herbert Hoover, also named three justices during his single term. 

The conservatively oriented Court in the 1930s caused FDR some grief during his first term, but the resistant justices became more agreeable to the New Deal after he won a landslide re-election in 1936, sixty-one percent of the popular vote and ninety-eight-point five percent in the Electoral College. Of course, his threat to “pack” the Court may have helped.

Fact is the framers of the US Constitution did not intend the Court to be an initiator of policy. It was to step in only when one of the other branches or a state had moved out of bounds. In No. 78 of The Federalist Papers, Alexander Hamilton wrote, “…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.” He went on to assert, “…the judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”

In recent years the Court has assumed a more prominent role than anticipated because of the failure of the executive and legislative branches to effectively seize the initiative in addressing the needs and concerns of the American people. For some thirty years now gridlock seems to be the preferred mode of operation in Washington. And while most of the difficulty may be attributed to Republicans, the Democrats are not blameless.

Finally, it is noteworthy that Trump and the Senate Republicans are acting with great urgency in processing Barrett’s nomination. This is in stark contrast to how vacancies in many key federal agencies have been allowed to linger.

For example, the agency charged with protecting workers’ right to organize, the National Labor Relations Board, did not have a quorum (four) to function for more than six months between December 2019 and July 2020. The board is supposed to have five members. It still only has four, and three are Republicans.

And the six-member Federal Election Commission which enforces campaign finance laws has lacked a quorum (four) for most of Trump’s term. For only one month since August 2019 has the commission had four members. Currently, it has three with one, a Republican, nominated. His confirmation will leave the commission likely deadlocked.

Effective governance seems elusive in Washington today.