Justice Ruth Bader Ginsburg deserves all the tributes she has been receiving.
Her record of perseverance in overcoming many obstacles placed in her path just because she was a woman is an inspiration to all Americans. Her judicial record is a testament to a consistently liberal jurisprudence, well reasoned within the traditional rules of legal argument. She served America well.
Much more should be said about Justice Ginsburg, by many far more qualified than I; but there is an immediate issue that needs to be addressed.
What should the president and the Senate do about her successor? For the good of the country, and for his own re-election prospects, President Trump should not name a successor until after the election.
If he does, the remaining days of this Presidential campaign will be consumed by this issue. Something “awful” will be found out about the nominee. The Kavanaugh hearings will be repeated. The country, already ripped apart, will be divided even more bitterly. It is well known that the two presidential candidates will nominate individuals with very different judicial philosophies. Let that be all that is said, for now. Spare us the vitriol.
If the president promises to nominate a Justice only after the election, he actually enhances the support he will receive from his base. Social conservatives, small government advocates, fiscally responsible voters, and pro-business advocates will all coalesce around the belief that President Trump will nominate someone supporting their views. Social liberals, central planners, advocates for compensatory justice, labor union advocates, will coalesce around former Vice President Biden.
If either announces a specific nominee, however, at least some of his coalition will be disappointed, if only because the nominee might not be known for the particular issue energizing the supporter. As long as no name is specified, all can hope the nominee will be the best champion for the issue that is most important to them.
After the election, if Trump wins and the Senate stays Republican, Justice Ginsburg’s replacement can be named and voted on after appropriate hearings and deliberation. In any other permutation (Trump and a Democratic Senate; Biden and a Republican Senate; Biden and a Democratic Senate), Senate Republican Leader McConnell will attempt confirmation before the Senate and presidential inaugurals in January. He has already promised to do so. If President Trump’s nominee is confirmed, the Democrats will rekindle the resentment engendered by Sen. McConnell’s refusal even to give a hearing to President Obama’s choice to succeed Justice Scalia, Judge Merrick Garland.
McConnell’s words then, that a new president should be allowed to fill a Supreme Court vacancy, will be thrown back at him. So will the words of Senate Democratic Senate Leader Schumer from that time, that an incumbent President has the right to fill a vacancy whenever it occurs.
If Trump and McConnell push through a new Justice between November 3 and January 3, and the Democrats win both the Presidency and both houses of Congress, then the Democratic leaders will be tempted to rectify what they will consider the theft of two Supreme Court Justiceships. They could pass a law with a simple majority to expand the number of Supreme Court Justices from 9 to 13.
The Constitution gives Congress the power to decide the size of the Supreme Court. The four new Justices would join the three remaining liberals, creating a 7-6 liberal majority. However, when the Republicans next control both Houses and the presidency, they would expand the court further, adding conservative Justices. The politicization of the judiciary, always a risk, will then have become a reality.
In 2018, Chief Justice Roberts chided President Trump for referring to “Obama Judges.” Federal judges, Roberts said, were non-partisan. That is not entirely true, but it should remain a realistic aspiration. An iteration of Court-expansion schemes will destroy that hope, to the tremendous loss of our country. At least, let us avoid that.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He was a law clerk to US Supreme Court Justice Byron White. He was a tenured law professor at Stanford and dean of the Haas School of Business at UC Berkeley. He served five terms in the US Congress and two years in the California State Senate. He left the Republican Party in 2016 and is in the process of forming a new political party in California, the Common Sense Party.