If Trump and Republicans replace Ginsburg it will destroy the remaining public legitimacy of the Supreme Court. Full stop.But the real problem is what is done to the process (I know, I know, EVERYBODY hates the "process"). If Supreme Court Justices are appointed with all the care and oversight of appointing a family member to a civil service post, THAT'S the real damage to the Court. Yes, increasing the size of the Court will be seen as "court-packing" (only because the press and Republicans called it that when FDR tried to do it), even though the Constitution doesn't establish the size of the Court and it's been smaller than 9.
The Republican party’s willingness to invent, bend, cherry-pick, or break rules and norms as needed in the pursuit of power would be undeniable. Already Republican activists have begun creating ludicrous, tortured rationales: Since 1880, no Senate with more than three left-handed members has failed to vote on the nominee of a president whose name contains the letter “d.” To anyone with ears to hear and eyes to see, these justifications are an affront to common sense and basic fairness.
If Republicans choose this route, their ruthlessness would have resulted in not one, but two SCOTUS seats that will be widely regarded as stolen. And worse: stolen by a president who was himself elected despite a decisive loss in the popular vote.
Imagine what would happen if Ginsburg were replaced before November, and then Joe Biden wins the presidency and Democrats capture the Senate. There would be enormous pressure to somehow reform the Supreme Court. And it is not clear what principled counterargument might be mounted against such ideas, even if the “reform” proposals amount to enlarging and packing the Court.
The Supreme Court has become increasingly politicized since the failed nomination of Robert Bork in 1987. But it still retains a great deal of independence and popular legitimacy. This is largely a testament to the character of the justices, which has mostly outbalanced the cravenness of the politicians who have appointed and confirmed them.
But this politicization will be as nothing—absolutely nothing—compared to what would happen if Ginsburg is replaced before November 3.
The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869.
That's the Supreme Court website, but it doesn't tell us enough:
Since 1789, Congress changed the maximum number of Justices on the Court several times. In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices in an attempt to limit incoming President Thomas Jefferson’s appointments to the high bench. Jefferson and his Republicans soon repealed that act, putting the Court back to six Justices. And in 1807, Jefferson and Congress added a seventh Justice when it added a seventh federal court circuit.Interesting that two Justices opposed FDR's plan, as they don't have votes in Congress. Would public sentiment support a change in the law to appoint more justices? I have no doubt of it. Republicans play with the memory of "Notorious RBG" at their peril (well, they're also whistling past their political graveyard supporting Trump and ignoring the massive public support for BLM and justice for citizens over police officers). Is that what should happen? Frankly, I don't see why not. Adams clipped the number to pester Jefferson, which seems like a pretty petty purpose, especially compared to this. The notion that we the people were always high-minded and calm and pond water before, well, "now" (whenever "now" is) is frankly eyewash. You'll not the number went up to 10 at one point (an even, not odd, number) and the Republic did not fall. Frankly, FDR's attempt was rather too naked a power grab, and he ended up getting what he needed without it. Increasing the Court under Biden would be a rebuke to the GOP which would be sorely needed because, as I say, the fundamental problem here is the abuse of process, which is what we're really talking about when we talk about an abuse of power. Which is this problem:
In early 1837, President Andrew Jackson was able to add two additional Justices after Congress again expanded the number of federal circuit court districts. Under different circumstances, Congress created a 10th circuit in 1863 during the Civil War, and it briefly had a 10th Supreme Court Justice. However, Congress after the war passed legislation in 1866 to reduce the Court to seven Justices. That only lasted until 1869, when a new Judiciary Act sponsored by Senator Lyman Trumbull set the number back to nine Justices, with six Justices required at a sitting to form a quorum. President Ulysses S. Grant eventually signed that legislation and nominated William Strong and Joseph Bradley to the newly restored seats.
Since then, aside from President Franklin Roosevelt’s ill-fated threat to support an effort to add new Justices (who sympathized with his policies) to the Supreme Court, the number of Justices on the Court has remained stable. In 1937, Roosevelt had won a second term in office, but the makeup of a conservative-leaning Supreme Court hadn’t changed since he took office four years earlier. Roosevelt supported a Judicial Procedures Reform Bill of 1937 to add as many as six new Justices.
The legislation struggled to gain traction, and it was opposed not only by Chief Justice Charles Evans Hughes but also by the liberal Justice Louis Brandeis. Soon, changing voting patterns on the Court along with vacancies made the Court Packing plan a moot point.
What do you think McConnell would most like to spend the last stretch of the election calendar talking about? The failed Coronavirus response? Trump’s tweets? Or judges? This isn’t even a question.There will be no review, no examination, no investigation, no questioning. McConnell will schedule this to move as rapidly as possible with as little question as possible as to qualification. The only qualification will be victory, and the only interest is in filling that seat as rapidly as Congressionally possible. That is what's going to damage the Court.
McConnell risks all this by waiting until after the election to confirm a judge in a lame-duck session. All the incentives are aligned for McConnell and Trump to act now. Pushing this fight past the election only risks confirming a judge nominated by a President who was just rejected by the voters by senators who have been voted out of office. A Democratic Congress may think about impeaching that judge, rather than let him or her serve out his or her term.
Yet in truth, even that would be preferable to what would happen should Trump try to replace Ginsburg during the interregnum between Election Day and Inauguration Day.Although I gotta say, Newt Gingrich set off that powderkeg in the '90's, and Mitch McConnell alone seems to have been aware of it. It's about time the Democrats caught on that the only rule is, there are no rules. I'm not saying that's a good thing. I'm saying dese are de conditions dat prevail. All the tut-tutting and hand-wringing and clucking of the commentariat is as nothing now, if it ever has been. I saw Bob Woodward on PBS last night, and he was so worked up he almost became emotional. But Woodward "worked up" is still too bland and tranquil and "establishment" for the current situation, which has been the situation since about 20 years after Woodward became famous. Because the best solution Mr. Last has, is this one:
If Trump and Senate Republicans are defeated in the election, but then try to replace Ginsburg before leaving office, the political retribution would be incalculable. The Democratic party would believe—with good reason—that there are no limits to majoritarian rule.
At which point, the powder keg would explode.
Trump could, seeing this, take the high road. He could issue a statement with both Mitch McConnell and Chuck Schumer stating that all parties—both Republicans and Democrats—intend to respect this great American’s last wish. That they recognize that what happened to Merrick Garland had poisoned the Supreme Court and that, by postponing this nomination, they hoped to create the space for this organ of the political system to heal.Has he been paying attention for the last four years? He says that won't happen because it's 2020. I say it won't happen because LBJ beat Goldwater like a drum in 1964.
Perspective, people. Nothing in human history is sui generis. Nothing.