McConnell's Rush to Confirm Barrett Ignores Crucial Questions of Principle | Opinion

Before Justice Ruth Bader Ginsburg's body had been laid to rest, President Donald Trump had announced his choice of Judge Amy Coney Barrett to fill her seat. Barrett's confirmation hearing begins Monday, less than two weeks after Ginsburg's burial and a scant three weeks prior to the election. The contrast between the two women could not be starker. The "Notorious RBG" was a champion of civil rights, a leader in the fight for women's equality and a beacon of hope for so many across the United States. Barrett, by contrast, is a "handmaiden" of the Christian right, a vocal opponent of abortion and, from all appearances, a proponent of extreme positions opposing gun safety laws.

The rush to confirm Barrett so close to a presidential election is an undignified exercise in McConnellian power politics, though an unsurprising one, given what is at stake for the GOP, Trump and Senate Majority Leader Mitch McConnell personally. But the Republicans should think twice before proceeding with this full-scale assault on the confirmation process. In particular, there is still an underlying question of principle that it would behoove them, and the country, to pause to resolve: In a presidential election year, particularly toward the end of that year, should the Senate hold hearings and vote on nominations for the high court? Or should it wait until after the election and allow the new president to select the next justice?

The relevant constitutional provision, Article II, Section 2, does not resolve the question. It merely says that the president "shall nominate, and by and with the Advice and Consent of the Senate...judges of the Supreme Court." Two interpretations are possible, each of them potentially reasonable. First, the clause could be read literally as suggesting that a president is entitled to nominate Supreme Court justices at any point during his or her term, and the Senate should consider the nominee, all the way up to Inauguration Day. Alternatively, one could argue that despite the literal meaning of the clause, the constitutional phrase is underdetermined and should be interpreted in light of the practice. Therefore, the president, and accordingly the Senate, should show self-restraint and deference to the will of the people by refraining from issuing nominations in an election year.

The latter approach leaves many questions unanswered. After what point in a presidency are judicial nominations or confirmation hearings to be postponed? Should every nominee to the Supreme Court at least be entitled to a hearing, as used to be the practice in the Senate? Should the self-restraint apply only to nominations to the Supreme Court?

In order to make true legal and pragmatic sense of the idea, we would need a theory under which it was either wrong of the president to nominate a justice in his or her last year of office or right for the Senate to postpone the confirmation hearings.

If consistently applied, such an approach could rival the more straightforward reading of Article II, Section 2 of the U.S. Constitution. Yet consistency, or at least principled consistency, is precisely what McConnell is rejecting. Instead, he is answering the question both ways depending upon whether he likes the outcome.

For McConnell, if President Barack Obama is in his fourth year in office and it is March 2016, the Senate Republicans will take the historically unprecedented step of refusing to have a confirmation hearing for a Supreme Court nominee, in this case Merrick Garland, because the voters should decide what happens with the seat when they elect a new president in November. For appointing Supreme Court justices, Obama was entitled to three years in office, not four.

If Trump is president, and it is October 12, 2020, 22 days before the presidential election, the answer is different. There must be a hearing for the president's nominee, with confirmation as soon as possible—perhaps even in time for the new justice to rule on a disputed presidential election.

Never mind that Trump is behind in most of the polls and that he is only the third president in American history to be impeached by the House of Representatives. If he wants to appoint yet another justice to the court—a total of three in his first four years in office, compared with two in Obama's eight years in office—that is his right, regardless of precedent, fair play or the demands of compromise.

What can we say when comparing McConnell's behavior in 2016 with that in 2020? Admittedly, there is a form of consistency in his behavior, the consistency of "might makes right." If the Constitution does not provide a mechanism to stop him, McConnell will do what he can get away with.

McConnell's adherence to this "principle" is so consistent that it will allow us to predict his behavior every time. It is the consistency of what Ronald Dworkin referred to as a "checkerboard strategy," namely a Solomonic approach that gives each political interest group a chance to prevail when it is in control. A checkerboard strategy regarding abortion, Dworkin points out, would be to "make abortion criminal for pregnant women who were born in even years but not for those born in odd ones." But such an approach is not what we want when the body politic is divided over some matter of principle. Instead of dividing the baby in two, what we want is a reason in justice to favor the compromise in values.

If Ginsburg is replaced by Barrett, the historic 1973 decision in Roe v. Wade will almost certainly be overturned. That will mean that states will be free to outlaw abortion because no constitutional principle will prevent such an exercise in raw power politics. There is no reason in justice for only half the women in the U.S. to be legally entitled to seek an abortion. Rather, it could be described as a moral accident produced by the fact that Ginsburg died in September 2020, rather than on January 21, 2021.

If Roe v. Wade is overturned, in short, the country's approach to abortion will be precisely the checkerboard solution Dworkin ridiculed, brought in by a highly politicized Supreme Court, whose members are selected on the basis of checkerboard politics of the most extreme sort.

Consistency and custom are a large part of what the Senate is supposed to be about—the framers intended it that way when they created six-year terms, with only a third of the Senate up for election every two years. With McConnell in charge, power wins and moral principle loses. There is, however, a checkerboard solution to these politics of cynicism and might, namely to out-Mitch Mitch and simply add justices to the court.

The Constitution is silent as to the number of justices on the Supreme Court and the number of judges on other federal courts. The number of judges on each court is fixed by statute. Changing the statute—for example, to go from nine Supreme Court justices to 11, 13 or or 15—requires a bill to pass the House and Senate and to be signed by the president or a bill to be passed by a two thirds veto proof majority of the House and Senate. A point missed by all of the candidates in the 2020 presidential and vice-presidential debates thus far is that presidents can't "pack" courts, but Congress with or without the president's signature can decide the number of justices. Congress has done so frequently with respect to other federal courts and occasionally with respect to the Supreme Court which has not always had nine justices. If the Democrats control both houses of Congress and the White House, they could increase the number of justices in 2021. When electoral fortunes change and Republicans control the White House and both houses of Congress, they can respond by changing the number of justices yet again.

Mitch McConnell and Amy Coney Barrett
Senate Majority Leader Mitch McConnell meets with Seventh U.S. Circuit Court Judge Amy Coney Barrett, President Donald Trump's nominee for the U.S. Supreme Court, on Capitol Hill on September 29 in Washington, D.C. Susan Walsh-Pool/Getty

Because justices have life tenure and cannot be removed from the court without impeachment, the only way to change the political composition of the court is to increase the number of justices. One can imagine a Supreme Court of lifetime appointees that in size and importance resembles the British House of Lords, now about 800 members strong. In this world, power prevails over consistency and custom. In this world, there is only one answer to the question, Why does McConnell think it acceptable to refuse even a hearing to Garland but confirm Barrett? The answer, of course, is because he could. If the Democrats play tit-for-tat, McConnell's checkerboard policies will not end well for the Supreme Court or for the Republicans.

What message does this send to the American people and to young people studying our government in schools and colleges, who fruitlessly try to discern the principle on which our elected and appointed officials act? The message is this: The Constitution can be endlessly interpreted and distorted as much as possible for political advantage. The Senate—the body where the Founders intended that consistency and custom should reside—has abandoned these qualities, not for any deep reason of principle, but for the mere sake of ensuring the ability to ignore principles remains.

To Barrett, who has Ginsburg to thank in more ways than one for her likely accession to the high court, may you cleave to the vision of equality that is embedded in our Constitution and recognized in our precedent and our traditions. And to the Notorious RBG, who at last resides in a place of principled consistency, we hope the Supreme Court, including the women and men who preside over it, continues to fulfill your vision as a place where justice can be done.

Claire O. Finkelstein is the Algernon Biddle professor of law and professor of philosophy at the University of Pennsylvania, where she is the faculty director of the Center for Ethics and the Rule of Law. Richard W. Painter is a professor at the University of Minnesota Law School and was the chief White House ethics lawyer under President George W. Bush. He is the author (with Peter Golenbock) of American Nero: The History of the Destruction of the Rule of Law in America and Why Trump is the Worst Offender.

The views expressed in this article are the authors' own.