The parties aren't playing by the same rules when replacing justices

The parties aren't playing by the same rules when replacing justices
© Bonnie Cash

The death of Justice Ruth Bader GinsburgRuth Bader GinsburgCOVID-19: Justice Alito overstepped judicial boundaries Defusing the judicial confirmation process Conservative justices help save ObamaCare — for now MORE is unquestionably an important turning point in the history of the Supreme Court. What happens next, however, may be an even more decisive turning point in the history of all our national institutions.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellFeinstein to step down as top Democrat on Judiciary Committee Voters want a strong economy and leadership, Democrats should listen On The Money: Biden to nominate Yellen for Treasury secretary | 'COVID cliff' looms | Democrats face pressure to back smaller stimulus MORE (R-Ky.), who refused even to consider a replacement for Justice Antonin Scalia because his death came more than eleven months before the end of President Obama’s term, now declares his determination to rush through a replacement for Justice Ginsburg, who died four months before the end of President TrumpDonald John TrumpBiden team wants to understand Trump effort to 'hollow out government agencies' Trump's remaking of the judicial system Overnight Defense: Trump transgender ban 'inflicts concrete harms,' study says | China objects to US admiral's Taiwan visit MORE’s first term. In 2016, he said the people should decide who chooses the new justice; now, he wants to preempt the people’s vote.

It is important to understand just how sharply Sen. McConnell’s approach breaks from long-accepted norms. The two parties have not been playing by the same rules. Current Justice Clarence ThomasClarence ThomasDefusing the judicial confirmation process Will the Supreme Court take ObamaCare off life-support? The overlooked significance Kamala Harris brought to the Biden-Harris ticket MORE, as well as seven other appointees of Republican Presidents Nixon, Ford, Reagan, and George H.W. Bush, were confirmed by Democratic Senates. By contrast, the last time a Republican-led Senate confirmed a Democratic appointee to the Supreme Court was 1888.


Republican nominees have held a majority on the Supreme Court continuously since 1969 — for more than half a century — even though the voters have fairly evenly divided their choices of president over that period. Indeed, at one point the court had eight Republican-appointed justices and just one chosen by Democrats.

Republican nominees have held this majority in part because Republican presidents have selected younger justices. This majority also is attributable in part to Republican-appointed justices retiring under Republican presidents confident that their successors would be confirmed. By contrast, had Justice Ginsburg retired under President Obama after Democrats had lost control of the Senate, Majority Leader McConnell likely would have tried to block her replacement just as he blocked President Obama’s nomination of Judge Merrick GarlandMerrick Brian GarlandFeinstein to step down as top Democrat on Judiciary Committee The Hill's Morning Report - Presented by the UAE Embassy in Washington, DC - Calls mount to start transition as Biden readies Cabinet picks Democrats brush off calls for Biden to play hardball on Cabinet picks MORE. Justice Thurgood Marshall considered resigning in 1980 but ultimately stayed on, reportedly because he was concerned that Republicans would block any replacement President Carter nominated to leave the seat open for President Reagan.

Democrats on and off the Court have pushed Democratic-appointed justices to step down even when a Republican president would choose their replacement. Pressure from Democrats helped convince Justice Abe Fortas to retire after revelations that were tame by today’s standards. Justice William O. Douglas’s closest allies on the court pushed him to retire when they believed a stroke had impaired his ability to perform his responsibilities fully. Had he stayed on the court, President Carter would have named his replacement.

Justice Thurgood Marshall used to joke about his intention to stay on the court until he died, but he ultimately retired under President Bush when he felt he could no longer do his job properly. He lived on into President Clinton’s term and could have kept his seat in Democratic-appointed hands but had too much respect for the court to do so.

We know of no comparable examples of Republicans urging Republican-appointed justices to create vacancies that Democratic presidents would fill. Indeed, earlier this year Sen. Lindsey GrahamLindsey Olin GrahamFeinstein to step down as top Democrat on Judiciary Committee Democrats face increasing pressure to back smaller COVID-19 stimulus Media and Hollywood should stop their marching-to-Georgia talk MORE (R-S.C.) urged Republican-appointed judges to retire expeditiously so that President Trump could name their replacements.


Everyone in politics likes to win often. Democratic politics requires everyone to lose from time to time.  Insisting that one may never legitimately lose connotes an autocratic arrogance incompatible with genuine democracy.

Conservatives already have a solid, five-member majority on the Supreme Court. That majority gutted the Voting Rights Act, invalidated domestic violence legislation, and struck down campaign finance laws so the super-rich can dominate politics. This majority also has raised obstacles to even being heard in court and allowed large companies to coerce or trick their workers and customers into signing away key rights under federal and state law. And it has taken major steps to allow large entities to shield lawless behavior through secrecy.

Conservatives’ defeats in the Supreme Court have become increasingly rare, largely in cases of egregious overreaching. The conservative majority split to allow the Affordable Care Act to survive, but it struck down part of the Act, costing 5 million people health coverage. The Court is preparing to hear another effort, supported by President Trump, to invalidate the Act completely. If Sen. McConnell succeeds in seating a new conservative justice, Chief Justice Roberts’s vote will not matter if the other five conservatives vote to strike the law down. After failing to repeal the law through democratic means in 2017, Sen. McConnell would still be able to impose his will on the majority that supports the law.

In response to Sen. McConnell’s blatant hypocrisy, some suggest that if Democrats win the election they should abolish the filibuster to expand the Supreme Court, offsetting the additional Republican-appointed justice seated in this manner. Those would be grave steps.

I have argued that the filibuster is an extremely valuable safeguard against impetuous or imperious moves by newly-minted majorities and that Congress has been right to narrowly limit circumstances where filibusters are disallowed. It has blocked some important social reforms, but it has protected others. Without the filibuster, our major civil rights and environmental laws could not have survived in their present form.

I also have written in opposition to court-packing. Law cannot function without respect, and if it comes to be perceived as just another arena of partisan warfare, cut off from reason and principle, that respect will vanish. Democrats rightly rejected President Franklin Roosevelt’s plan to cancel out the votes of justices duly appointed by his Republican predecessors.

But Sen. McConnell’s approach is also court-packing. His success also would irreversibly turn the court into another organ of partisan politics.

The court’s conservative majority is not in question here. What is at stake instead is whether conservatives will enjoy a two-thirds super-majority on the court such that, even if a litigant persuades all the moderates and liberals plus one of the conservatives, it still will not matter. Such a supermajority is certainly not reflective of the voters’ sentiments: They have given the Republican nominee a majority in only one of the last seven presidential elections. And allowing one political faction that does not even hold a clear majority the unfettered power to override its opponents’ decisions when voters put them into office is inconsistent with a functioning democracy.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1