At the very least, Senate Republicans stole one seat from the American people in 2016 when they refused to fill the seat of Justice Antonin Scalia, who died in February that year fully nine months before the November election.
Within hours, Senate Majority Leader Mitch McConnell pledged that his GOP caucus would refuse to replace Scalia until the presidential election took place. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said, as Democratic lawmakers were still offering condolences to Scalia’s family. And after President Barack Obama nominated a relatively moderate judge, Merrick Garland, to fill Scalia’s seat, McConnell refused to even give him a hearing, let alone a vote.
So that was the McConnell rule then. But now that liberal justice, women’s right icon, and all-around general badass Ruth Bader Ginsburg has passed, it’s something different. After ABC News reported that Donald Trump would nominate a new justice to fill the seat “in the coming days,” McConnell issued a statement promising, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” Now, apparently, the American people don’t get to have a voice in the selection of their next Supreme Court justice because, explained McConnell, Republicans retained their majority.
Whether McConnell can line up all the votes he needs to confirm Trump’s nominee remains to be seen. But the bottom line is, there’s simply no way a Supreme Court packed with conservative ideologues can coexist with an overwhelmingly diverse and increasingly liberal American public. It simply cannot stand.
If Republicans refuse to follow their own precedent about not filling a Supreme Court seat in a presidential election year, as they appear poised to do, Democrats will have no choice but to expand the court as soon as they are granted the power to do so by the American people.
That could be as soon as November with the potential elevation of former Vice President Joe Biden and Sen. Kamala Harris to the White House and Democrats reclaiming the Senate majority. As I wrote following the confirmation of Brett Kavanaugh to the high court: “Our elected leaders are the recourse. They have to and can serve as a check on a Supreme Court that’s severed from prevailing public opinion in the same way President Franklin Delano Roosevelt’s court-packing threat to a right-leaning Supreme Court did in 1937. Electoral redress isn’t a sure bet, but it’s a fair prospect when the vast majority of Americans agree on the issues, see the threat that is posed to the foundations of our democracy, and engage in the hard work of generational change.
In fact, some Senate Democrats are already headed in that direction.
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
At the top of this piece, I noted that Republicans had already stolen one Supreme Court seat from the American people “at the very least.” Given what we know now, particularly in light of the recently released Senate Intelligence Committee report on the Russia investigation, it’s clear the Trump campaign illegally colluded with Russia to win the 2016 election. Given that reality, Trump and Senate Republicans have already stolen two Supreme Court seats and are trying to notch a third.
Justice Ginsburg’s parting hope, as dictated to her granddaughter days before her death, was this: “My most fervent wish is that I will not be replaced until a new president is installed.” Donald Trump and Mitch McConnell will now do everything in their power to violate that wish.
RBG went out swinging. Now it’s on us to go out there and win this thing for the sake of our children and future generations. Let’s go.