Ruth Bader Ginsburg was confirmed to the Supreme Court 96-to-3 in August of 1993 (New York Times, 1993: Senate vote 96-3, easily affirms Ginsburg as Justice). Republicans knew she didn’t agree with them on most issues, but they did little to block her nomination. Ginsburg refused to answer questions of specific cases and sailed onto the bench.
Today, 25 years later, that could not happen. Ginsburg would only be confirmed with a clear Democratic majority in the Senate. The battle would be ugly. It would also be unfair.
The Republican majority that denied Merrick Garland at least the decency of a confirmation hearing and vote under Pres. Barack Obama only furthered the politicization of the Supreme Court. The United States is paying for the polarization us — the citizens. We created this mess, as citizens and voters.
GOP voters rewarded the intransigence of Majority Leader Mitch McConnell. There were arguments for not supporting Garland in the last year of a lame-duck term, but those don’t reflect neither consistent history nor any Senate rules. No, the GOP should have held a vote, up or down, on Garland.
The Constitution does not set the rules for Supreme Court confirmation. The Constitution infamously doesn’t establish the number nor set terms for the justices on the high court. The Framers should have included specifications for the Supreme Court, but they didn’t. Maybe we should correct this… someday… but that’s unlikely to happen.
Democrats will resist Judge Brett Kavanaugh’s nomination to the Court by Donald Trump. They won’t stop Kavanaugh’s elevation to the highest bench, but they will rally their base voters. In fact, Donald Trump could have two or more future nominations, too, cementing the Supreme Court’s ideological bent for a generation.
Kavanaugh, intellectually, meets every requirement to join the Court, as did Garland. Presidents should be able to appoint qualified people to the court, promptly and with fair hearings. The GOP rediscovering this philosophy troubles me. They should have adhered to this principle for Garland, too.
This confirmation process is only going to get worse. The Supreme Court has always been political, especially during the New Deal. We’re back to the future.
