Justice Ruth Bader Ginsburg’s death late last week set off the usual chain reaction in which the sitting president promises to nominate a candidate that adheres to his party’s ideology, while the party not controlling the White House promises to use its best efforts to stall said nominee through the vetting process. What makes this pending nomination fraught with deeper concern is that the United States is more polarized than it has been since the late 1960s, and is in the middle of a Coronavirus Pandemic/Social Justice Movement that has exposed an increasingly rigid level of contempt for opposing political views. Indeed, the current discord is such that one could credibly suggest that the nation is in the throes of a “cold” Civil War that could morph to hot depending upon the election results on November 3rd–and whether a peaceful transition of power occurs should Joe Biden defeat President Donald Trump.
Lest we forget that in December of 2015, then Democratic presidential candidate Hillary Clinton warned Democrats via Tweet that a Republican president could appoint as many as four Supreme Court Justices. Clinton has proved almost perfectly prescient, as Mr. Trump has successfully appointed Neil Gorsuch and Brett Kavanaugh to the Supreme Court and to the delight of abortion opposing predominantly white evangelical voters, has also appointed over 200 conservative judges to the lower federal courts as well–a move that will impact the law for the next 40 years.
So it should come as no surprise that the president, within hours of Justice Ginsburg’s death, indicated that he would quickly nominate her replacement. It also should come as no surprise that some of the same Republicans that refused to confirm Merrick Garland, former President Barack Obama’s selection to replace the late Antonin Scalia in 2016, are now moving with all celerity to push through a third Trump appointee. For almost three days, many within the mainstream media have lamented how Sens. Mitch McConnell, Ted Cruz, and Lindsay Graham all have turned into hypocrites, which is true despite their convenient excuse that the president and the party controlling the Senate are the same, unlike in 2016, a position that is not based in law.
But the old saying “to the victor go the spoils” is true in presidential judiciary nominations, and Trump has the right to nominate–and the Senate has the Constitutional obligation to advise and provide consent about his nomination. Now, whether a Trump pick can be confirmed prior to November 3rd remains to be seen, but if the GOP pushes forward and seats a conservative over their own 2016 precedent and the objections of millions of Democratic faithful, then their short term “owning the libs” could prove short, indeed, should Joe Biden defeat Trump and propose adding multiple new seats on the Supreme Court to a Democratic controlled Senate (quite possible) while maintaining Democratic control of the House (all but certain).
Think back to your old Civics classes and remember that Congress has authority per Article III of the Constitution to control the makeup of federal courts. Since 1789, the Supreme Court has had several changes in how many justices were seated to hear “cases and controversies,” with the number ranging from as few as five to as many as 10 through 1869. That year, President Ulysees S. Grant signed the Judicary Act into law that set the number of justices at nine–where it has remained ever since. In 1869, the Union consisted of 37 states and nearly 40 million citizens but today, over 330 million Americans in 50 states are still served by the same number of Supreme Court justices.
I also ask you to think back to your old American History classes and remember how President Franklin D. Roosevelt proposed adding an additional six justices to the Supreme Court in the late 1930s. Roosevelt, frustrated that a conservative Supreme Court was opposing key aspects of his first term New Deal proposals to pull the country out the Great Depression, was opposed by both Chief Justice Charles Hughes and noted liberal Justice Louis Brandeis. But in 1937, the threat of expansion alone was enough to find the Supreme Court ruling more favorably towards President Roosevelt; FDR’s boldness is an arrow that Joe Biden and modern Democrats have in their quiver should President Trump and Senate Republicans successfully seat a sixth conservative Supreme Court Justice.
For this to happen, obviously, Joe Biden must defeat Donald Trump and by defeat, I mean an indisputable Electoral College victory. A close call, without question, will trigger a recount and both Trump and Biden already have their legal teams selected and ready to deploy if Bush vs Gore II becomes the state of play. Knowing that only 42 days are left until the election, and that it usually takes 70 days to confirm a Supreme Court nominee, time is not on the side of an unbalanced court. Meaning, a potential 4-4 split does not bode well for a legal battle for the presidency, thus Trump’s desire to have a conservative seated prior to that Election Day. But if a Trump nominee is not seated, keep your eye on the Senate race in Arizona, where Republican Martha McSally is reportedly trailing Democrat Mark Kelly in that special election, one that could have Kelly in the late John McCain’s old seat by early November and capable of voting against confirming Trump’s selection.
But as for packing the court with progressives, in addition to the McSally race, the GOP is in danger of losing Republican Senators Cory Gardner of Colorado, Lindsay Graham of South Carolina, Thom Tillis of North Carolina, Susan Collins of Maine, Steve Daines of Montana, along with David Perdue and Kelly Loeffler of Georgia, each of whom is involved in tough battles against well financed Democratic opponents and the last, Kelly Loeffler, facing challenge from my Morehouse Brother Raphael Warnock, Pastor of Ebenezer Baptist Church in Atlanta. If you missed it last month, check out my interview of Warnock on Hobbservation Point Live:
Democrats, it seems, are only in danger of losing one seat, the one occupied by Alabama Sen. Doug Jones who while better financed, is facing Tommy Tuberville, the former Auburn University football coach who is a Trump devotee in a Trump loving state. So while there is a clear pathway to changing the complexity of the Supreme Court by adding three or more progressive justices to blunt or even dominate the conservative tilt, the key to such remains for Biden and the Democrats to develop the same singular focus that Republicans have with respect to shaping the judiciary to fit their ideological needs. We shall soon see whether they have such resolve…