A post-election, 8-member Supreme Court would invite chaos
The system our founders designed as the American democracy positions the Supreme Court as the adults in the room.
And the evolution of the other two branches of our government into food fights rather than problem-solving the past few decades has underscored the high court’s role.
Two of the most adult in the Supreme Court chambers were conservative icon Antonin Scalia and liberal icon Ruth Bader Ginsburg. Both of their tenures ended in death, Scalia in 2016 and Ginsburg on Sept. 18.
Scalia and Ginsburg could not have been farther apart in their Supreme Court views. And they could not have been better friends and colleagues.
There’s a lesson there for the elected stewards of our democracy if they are willing to digest it.
But Rep. Alexandria Ocasio-Cortez said the attempt to fill Ginsburg’s seat “should radicalize” us. Senate Minority Leader Chuck Schumer said “everything is on the table” if Democrats win the Senate majority and White House, including stacking the Supreme Court with more than nine justices. House Speaker Nancy Pelosi hinted at impeachment of President Trump and Attorney General William Barr.
The Supreme Court has had nine justices — previously termed “the right number” by Justice Ginsburg — since 1869 and the Constitution outlines how vacancies are filled. Presidents have a duty to nominate someone and the Senate is assigned the approval process.
Scalia was approved by a 98-0 vote in 1986 and Ginsburg was approved 96-3 in 1993. That was before high court nominations became venues for public slander.
So President Trump is going ahead with his nomination duties, Senate Majority Leader Mitch McConnell is promising a vote and Senate Judiciary Committee chairman Lindsay Graham says his panel is ready to handle the hearing.
Democratic leaders understandably are screaming hypocrisy, noting McConnell refused to go forward with President Obama’s 2016 nomination of Merrick Garland. Of course, they are now using the same reasoning McConnell used to call for a delay. McConnell’s party has held the Senate majority in both cases and is exercising its political right, however unseemly that is. Anyone who thinks Democrats would not do the same thing in those circumstances is naive.
The most distressing part of the resistance is the call to change the high court by expanding its numbers. It’s the latest attack among many in 2020 on institutions that govern our nation.
The court is not meant to be a political tool. It is meant to be the interpreter of the Constitution, with judgments based on it. It’s meant to be the arbiter of unresolved debates. And it’s not meant to be eight people. Vacancies are not supposed to be held up, given the daily need for the court’s legal voice on issues. That’s what gives our democracy a calming foundation.
The timeline is not being rushed. Justice Ginsburg was approved in 42 days, less time than the gap between her death and this year’s election. The first woman named to the Supreme Court, Sandra Day O’Connor, was approved in 33 days.
This does not have to be polarizing.
Not all of the 98 Senators approving Scalia and 96 Senators approving Ginsburg shared their philosophical leanings. They voted based on the nominee’s capability of interpreting the Constitution with reliability.
That was before these nominations became political slugfests.
But this country cannot afford a repeat of the illegitimate fiasco that accompanied the nomination of Brett Kavanaugh.
We are amidst a feverish battle for the White House. Democrats have hinted strongly they will take to the courts if they don’t get the desired result Nov. 3. The count includes unprecedented numbers of mail-in ballots, millions of them in states that have never implemented such a system, which has President Trump skeptical of the process.
The presidential vote outcome quite possibly will hinge on a legal interpretation. When that happened in 2000, the Supreme Court decided the debated Florida vote between George W. Bush and Al Gore. Scalia and Ginsburg both sat on that court, which took five weeks to rule.
Our country is on edge. We are battling to overcome a pandemic, an economic shutdown of questionable scope, and legitimate social justice demonstrations that have been turned into an illegitimate attempt to overthrow our institutions, with destruction and death in our cities.
A deadlocked, eight-member Supreme Court in a protracted quandary over a presidential election would be dangerous. Consider the chaos any significant limbo would bring.
Scalia and Ginsburg had remarkably divergent views. But they shared an offbeat sense of humor and love of opera and became friends. Their relationship in the Supreme Court family was no different than the relationships we have in our families, where differences are outweighed by the sanctity of our institution.
The Senate can honor Justice Ginsburg by honoring the country’s need for order and get a ninth justice in place by Nov. 3.
Sen. Schumer needs to recall his own words: “Every day without nine justices in the Supreme Court is a day without justice being done.”
David F. Troisi is retired as editor of the Sun-Gazette.