Republican senators do two things: They cut taxes and confirm judges. And right now, they’re all out of taxes to cut.
There will be a new justice on the Supreme Court of the United States by the end of the year come hell or high water. There is nothing Democrats can do to stop that reality from coming to pass. The only way it doesn’t happen is if enough Republican senators get cold feet.
The politics of the upcoming confirmation battle are no different than impeachment or the Kavanaugh and Gorsuch nominations. Whoever Trump nominates will be denounced as an extremist of some stripe or another. The top consensus pick for the spot, Judge Amy Coney Barrett, was blasted by a Slate writer as “fundamentally cruel” the day after Ginsburg’s passing. And after Democratic Senator Dianne Feinstein (D-CA) sniped at Barrett’s faith during her circuit court nomination hearings, left-wing sites like Vox happily trotted out and defended Feinstein.
Even if Trump chooses someone other than Barrett, that person will get the same treatment. Everyone remembers the utter debacle of the Kavanaugh hearings. But before that, Democrats filibustered the nomination of Neil Gorsuch, which paved the way for where we are now. There is no person that Trump could nominate that would placate these screaming hordes. As such, he shouldn’t bother negotiating with them either.
And the irony of all this is that if Democrats were in the position Republicans are right now, they wouldn’t hesitate to nominate and confirm their own pick. We don’t have to speculate about that — on lesser court nominations, Democrats have already done exactly that. They are the ones who set all this “precedent” that they now scream daily about in the press.
David B. Rivkin Jr. and Andrew M. Grossman note in The Wall Street Journal that the “week after President Jimmy Carter lost his 1980 re-election bid, he announced the judicial nomination of a close ally of Senate Judiciary Committee Chairman Ted Kennedy. The nomination sailed through the Senate, which confirmed the First U.S. Circuit Court of Appeals judge 80-10 less than a month later, six weeks before Inauguration Day.”
That judge was Stephen Breyer, who was later elevated to the Supreme Court. And it was Joe Biden himself who first argued that if the Senate was held by the party opposing the party holding the White House in an election year, nominations should get put on hold. Those rules are not in play here because Republicans control both the Senate and the White House — and voters have continued to vote Republicans into the Senate since 2014.
All this put together proves pretty conclusively that the “political crisis” writers like Jonathan V. Last say we’re approaching with this nomination is absurd. It’s not a legitimate political crisis; it’s a crisis in the minds of a Democratic Party that’s angry it’s losing according to the system’s rules. Democrats haven’t won an election and want the whole process put on hold because they think they can win the 2020 election.
The verdict is still out on that. Democrats thought they’d win in 2016 too. In Washington D.C. legal circles, the long-standing rumor was that Ruth Bader Ginsburg didn’t step down during the Obama administration because she wanted Hillary Clinton, “the first woman president,” to pick her replacement. Those political dreams came crashing down harder than the 2016 Hillary Clinton victory party.
Whether they’re real or not, Ginsburg’s wishes about her replacement have no bearing on the nomination process. America is not an aristocracy. We don’t pass seats or positions down to family or friends when we die. All political families with aspirations to dynasty still have to win elections. That’s been true from Kennedy to Bush and applies to Ginsburg as well.
When Last argues that the only way out of this moment is “the prudential coordination of elites,” what he’s saying is that the will of voters, which they’ve given to Republican senators in every election since 2014, doesn’t matter. That Republicans should not insert their pick on the Supreme Court because Democrats are threatening to burn down the system and riot like never before.
That’s already true. Democrats have been cranked up to 11 on the outrage meter for four years, and nothing has changed. Capitulating to them, as Last argues, wouldn’t fix the problem; it only rewards those who threaten the entire system’s very existence unless they win. Republicans have fought for more than fifty years for this moment, and turning back now because Democrats are mad isn’t an option.
Donald Trump may be the worst possible messenger for this moment, but it’s not him on the court. It’ll be a conservative. Trump’s short-list is a who’s who of the smartest and most brilliant legal minds in the country. Turning them down because of Democratic anger is not something any Republican should consider under any circumstances. If Democrats want to push this to the max, let them lose their minds.
This “political crisis” is the Democrats’ making, not Trump’s. And the conservative legal movement shouldn’t be asked to stand down just because of some baseless threats from Democrats.
And if I had my pick, I’d go with Amy Coney Barrett. Democrats have already proven they’ll smear her faith for an appeals court seat. If they want to do the same thing in a Supreme Court nomination fight, during an election — let them. Let’s bring that leftist religious bigotry out for the entire world to see while Americans cast their ballots. I’m sure it’ll score well with Catholics across the Midwest and Florida.