• Fri. Oct 23rd, 2020

Senate Majority Leader Mitch McConnell’s statement that a vote would be scheduled on a Trump nominee to fill the Ruth Bader Ginsburg vacancy has occasioned strong criticism from Democrats and some others as being inconsistent with his stance in 2016 that the new President should fill the Scalia vacancy. But this claim that McConnell’s actions cannot be reconciled is mistaken. A reasonable case can be made that McConnell’s actions are a legitimate exercise of the prerogatives normally accorded a Senate majority.

Debate over McConnell’s statements has turned to some extent on what exactly he said in 2016. Did he say that a vacancy that occurs in an election year should be filled by the next President? Or did he say that a vacancy, when the President and the Senate are controlled by opposite parties, should be filled by the next President? While a careful assessment of what McConnell said is important to determining whether his pronouncements are consistent, it is less relevant to my concern here: whether a reasonable case can be made for holding the seat open in 2016 and not doing so in 2020. 

The obvious objection to McConnell’s proposed action is that the justification for holding the seat open in 2016 was that democracy required the new President to fill the seat. And if democracy required that in 2016, it does so again in 2020. The possible McConnell response—that the Senate majority was from a different party than the President in 2016, but not in 2020—is irrelevant, because the argument from democracy applies irrespective of which party controls the Senate.

But this objection is mistaken. In the American system, the Senate majority has traditionally enjoyed various powers that it is entitled to exercise. It gains these powers by winning elections in which the voters place the responsibility to govern the legislative house in the majority party. 

One of these powers is the discretion to decide whether to hold a hearing and confirmation vote on a nominee. If the Senate were now controlled by the Democrats, it seems obvious that the Democrats would not be scheduling hearings or holding a vote on a nominee before the new President takes office. It is also obvious, I believe, that the Senate Democrats would not be taking these actions, even if McConnell had agreed to let the vacancy be filled in 2016. It is simply too close to the election.

The Senate majority’s power is not limited to hearings and confirmation votes on a nominee. The Senate majority also has the power to schedule hearings and votes on bills and legislative rules. This power is rarely questioned and seems to be understood as part of the prerogative of the majority party. One might argue that this power is needed to allow the majority party to govern in the legislative house and to be held responsible by the voters. But whether or not one embraces this power, it seems clear that it is part of the American system.

If McConnell’s decision was reasonable in 2016, then how can his 2020 decision to hold a vote before a new President takes office be justified? The answer is clear: it is one of the prerogatives of the Senate majority to do so.

The Senate majority’s power is accepted even when that majority takes highly partisan actions. Democratic Senate majority leader Harry Reid chose to eliminate the filibuster for circuit court judges in 2013 to allow President Obama to appoint three judges to the D.C. Circuit (often said to be the nation’s second most important court), thereby securing control of the court for the Democrats. Few argued that this action violated constitutional norms (as opposed to being imprudent), even though many Republican judges had previously been filibustered. This partisan act was deemed within the prerogatives of the Senate majority.

While the Senate majority’s power to schedule hearings and votes on nominees is largely accepted, that does not mean that this power is unlimited. It is easy to imagine exercises of this power that would violate accepted norms. For example, if an election resulted in a Democratic President and a Republican Senate majority, it is obvious that the Republicans would not be entitled as a matter of political norms to refuse to hold a hearing or a vote on the President’s Supreme Court nominee for the entire four years of the President’s term. Such an action would deprive the country of a nine-member court for an extended period. Thus, there are limits on the Senate’s power that are rooted in the overall functioning of the political system.

Precisely what this specific limit should be—what the appropriate trade-off between Senate discretion and Supreme Court functioning should be—is not obvious. The norms governing this situation are not clear at the margins. There are, however, some focal points that arise from history and other sources. One is a vacancy that arises at the end of the Supreme Court term in June during a presidential election year. Another is a vacancy that arises within the year that the presidential election will occur. I assume that virtually all observers would agree that a vacancy at the end of June is too late to require the Senate to act. Had Scalia died on June 30, 2016, the criticisms of McConnell would not have been very loud.

Obviously, there was disagreement about McConnell’s decision to keep the Scalia vacancy unfilled even though it arose during the election year (in February of 2016). While the Democrats believed the seat was left open too long, Republicans argued that a vacancy occurring during the election year arose close enough to the election to permit it to remain unfilled. In my view, McConnell’s position was a reasonable interpretation of the norm, albeit one that was contestable. By contrast, if one were to keep a vacancy open that occurred in the year prior to the presidential election, that would be a bridge too far. There would then be no obvious stopping point as to when the vacancy could arise and that would leave the Supreme Court vulnerable. Thus, McConnell’s decision keeping the Scalia seat open was reasonable, even though some might reasonably disagree with it.

If McConnell’s decision was reasonable in 2016, then how can his 2020 decision to hold a vote before a new President takes office be justified? The answer is clear: it is one of the prerogatives of the Senate majority to do so. While the Senate could hold the seat open in 2016, it was not required to do so. Similarly, the Senate majority can hold the seat open or allow it to be filled in 2020, as it deems the public interest to require.

One objection to my analysis is that it would lead to court packing by the Democrats. If the Democrats come to control the House, the Senate, and the presidency in 2021 (or in the future), then Trump’s filling of the Ginsburg seat may lead them to expand the size of the Supreme Court and fill it with Democratic appointees. While the Democrats might choose to court pack, it would not be justified under current norms. Court packing violates existing norms, having been rejected by all parties (until recently) from at least the New Deal. There are strong reasons for this rejection. Most importantly, there is no obvious focal or stopping point regarding court packing. If the Democrats choose to add three members to the Court in 2021, the Republicans could then, if they gained control of the House, Senate, and presidency, add three more members in 2025. This would soon undermine the Supreme Court’s role as a nonpolitical decisionmaker in our system—and would do so much more than having an eight-member court for four years.

In the end, one might criticize our system for allowing Senate majorities to exercise so much power. Of course, while there are disadvantages to significant majority party power, there are also advantages. One could have an interesting debate about such matters. But whether or not our existing system is optimal, Senate majorities do have such power and they often exercise it to benefit their party.

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