If a seat on the United States Supreme Court opens up, President Trump must nominate a judge and the GOP-majority Senate must, if the nominee is qualified, confirm him or her.
Undoubtedly, there will be a loud and raucous chorus of voices decrying such a maneuver and we are already hearing warnings of monumental chaos if the president and the Senate majority leader were to move forward.
“Both sides would be fighting it out as if it’s Armageddon,” pollster John Zogby said Sunday. “Democrats would be saying, ‘This is the end of the world and the end of America as we know it.’ It would be a battle royal.”
David Axelrod, who was senior adviser to President Obama, tweeted: “If there is a SCOTUS vacancy next year and senatemajldr carries through on his extraordinary promise to fill it — despite his own previous precedent in blocking Garland — it will tear this country apart.”
Pundits expect the GOP Senate would ignore its own 2016 precedent — thereby “enraging Democrats and many moderate independents,” said Larry Sabato of the Center for Politics at University of Virginia.
Both parties would use the issue as a rallying cry at the polls and we could expect horrible behavior on the part of politicians and the media as we saw during the Kavanaugh hearings.
One point of contention will be perceived hypocrisy on the part of Senate Majority Mitch McConnell, who blocked the nomination of Obama nominee Merrick Garland in 2016. At the time, McConnell released a statement, reading, “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.”
Already, McConnell has said publicly that if a seat were to open up next year he’d fill it. He sidesteps accusations of hypocrisy by noting that the president and the Senate belonged to two different political parties in 2016 and that would not be the case in 2020.
“You have to go back to 1880 to find the last time a vacancy created in a presidential election year on the Supreme Court was confirmed by a Senate of a different party than the president,” McConnell told Fox news last October. And of course, even if the Senate had chosen to hold a vote on Merrick Garland, the exercise would have been a mere formality, as there is virtually no chance Republican senators would have placed him on the court, with the impending possibility of an alternative, more Scalia-esque nominee just a few months away.
In the case of a hypothetical 2020 vacancy, assuming President Trump were to nominate a credible jurist, as he has so far, the Republican Senate majority (which expanded in 2018) is unlikely to have the same qualms about his nominee as they did about Garland.
Such is the nature of politics under a system of divided government. Certainly if the House of Representatives is given the power to open Articles of Impeachment against the president, the Senate has the power to decide whether or not to hold confirmation hearings for a Supreme Court nominee. Americans should in fact celebrate these checks on the power of the executive branch, especially those Americans who profess concerns about authoritarianism.