A rush to confirm justice nominee can hurt Supreme Court for years

A rush to confirm justice nominee can hurt Supreme Court for years
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As we engage in a great debate on when and whether to confirm our next Supreme Court justice, I think there is an ideological misdirection on both sides of the conversation. On the one hand, of course, all of the naysayers assert that Donald TrumpDonald John TrumpHillary Clinton responds to Chrissy Teigen tweet: 'I love you back' Police called after Florida moms refuse to wear face masks at school board meeting about mask policy Supreme Court rejects Trump effort to shorten North Carolina mail-ballot deadline MORE should, like his predecessors, exercise restraint from replacing a justice at this eleventh hour before an election. Further, Democrats argue there is hypocrisy coming from Republicans and their contrary approach to the nomination of Merrick Garland in 2016.

But these arguments of history and hypocrisy are inherently flawed. It is simply not true that presidents stop nominating justices in election years. Over a dozen presidents have made a nomination at least 30 times for an election year. Five presidents, including John Adams with the nomination of John Marshall, filled seats in the lame duck months after the election of their successors. As to hypocrisy, it is not that ideological shifting carries no political capital. It is just that in modern politics, switching positions to achieve highly desired results, such as a Supreme Court seat, is an action employed by power brokers on both sides of the political divide.

On the other hand, the hasty confirmation of a justice by a president who could lose the election would leave a distinct blemish of illegitimacy. The Supreme Court is not popularly elected so its perceived legitimacy is vital to our democracy and respect for the rule of law. The rush to confirmation of a conservative justice would easily be viewed as illegitimate, given that Trump cravenly would then have two Supreme Court confirmations based on those opposite grounds, one because senators said the public should decide and the other, of course, arguing the public should not.


Instead, there are more institutional and pragmatic reasons to wait. They relate to the very process by which the Supreme Court reaches its widely important decisions. As a professor who has taught constitutional law for decades and had the chance to train federal judges across the country, I learned that a crucial aspect of our Supreme Court is the value obtained with a diversity of perspectives. Indeed, hurriedly replacing the leading lioness of liberalism with a dogmatic conservative could threaten such dynamism of the Supreme Court for a generation to come.

It is better when there is ideological diversity among the justices of the Supreme Court. A tilt with a majority of six conservatives would call into debate any shifts from precedents for reproductive freedoms, same sex marriage, health care, and gun rights. It almost certainly would halt the salutary development where some conservative justices sometimes join the liberal justices to produce split majority rulings to avoid the tectonic decisions that could tear down the principles of stare decisis.

We are strongly in need of a Supreme Court ourt with varied views and perspectives in the divided era we live in. Constructive differences are very important. The concept of hybrid vigor is not confined to building strength with plant species and seeds. It underlies the very essence of effective judging in our government under the Constitution.

Ruth Bader Ginsburg, whose close friend was Antonin Scalia, would have been the first person to note that informed opinions must be tested and that there is great value in constructive differences among justices with opposing views. Legal scholar Melvin Urofsky captured this great spirit when he observed that dissenting opinions have shaped the debate on the Constitution and “the type of government we now enjoy.”

If, as expected, the Senate moves swiftly to confirm Amy Coney Barrett, and if indeed Joe Biden is elected in November with Democrats carrying the House and Senate, you can bet your sweet dollar that they will have prompt consideration for increasing the number of justices. The current number of nine is not magical, of course, as neither the Constitution nor history specify the number of justices on the Supreme Court.

A lame duck conservative president “packing” the bench with one more conservative justice could, and perhaps should, spark the movement to restore the ideological balance with legislation by the next Congress to add two to four new justices. The understandable foundation for such a move is so that the Supreme Court is perceived as keeping the diversity necessary to ensure its legitimacy as a federal institution.

James Wagstaffe is chairman of the Federal Judicial Center Foundation and adjunct professor with the University of California Hastings College of Law.