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Despite Hypocrisy, Confirming a New Justice is Fair

Updated: Sep 18, 2022

Niva Cohen

Opinion Editor

In September, Justice Ruth Bader Ginsberg of the Supreme Court died, leaving a vacant seat just six weeks before the election. While the country mourned, so did the Democrats, but not only the sorrow of her death. They sourly anticipated President Donald Trump’s nomination of a new Justice, and were outraged -- but not surprised -- when Senate Majority Leader Mitch McConnell rushed to confirm his pick despite refusing to hold a hearing for President Barack Obama’s choice in 2016 because it was an election year. Other Republican leaders followed suit, arguing that this year’s situation was different because the same party controlled both the Senate and White House. Although their hypocrisy is blatant and their rationale flawed, their 2020 position is the correct one; there is no reason why Justices can’t be nominated and confirmed in an election year.

The United States functions on the precedent that the Constitution, its founding document, sets. With regard to new Justices, it says that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.” The Constitution also gives the Commander in Chief a four-year term, not a three-year term or even a three-year and 364-day term. Therefore, the President of the United States has the right to exercise his or her presidential powers, such as nominating Justices, at any point during the four years in office. The end might draw nearer and nearer, but until the next Inauguration, there are no checks on what a president can do as long as he is working within the bounds of his job description.

As outlined above, filling a Supreme Court seat close to an election is Constitutional and legally fair. If, as a country, we decide that we want to change the law and forbid nominations in the last year of presidency, we must go through the proper channels. Yes, McConell is inconsistent and partisan, but as long as no laws are in place to hold leaders accountable, new Republican and Democratic Mitch McConells will arise in every generation, unfairly implementing arbitrary rules based on their best interests. A Constitutional amendment could provide clarity and prevent future unfair applications.

From a more idealistic standpoint, confirming Justices at the end of a presidential term reduces politicization of the Court and provides closure. Vacant seats become more politicized if left open during an election. In these cases, the American people invariably select the next president based not only on their own positions and plans for the Executive branch but on how they want the Court to tilt for the foreseeable future. This split, having some officers of government be elected and others appointed, is decisively why the Constitution gives presidents, and not the people, the responsibility of choosing Justices, in the first place; it isn’t supposed to be directly democratic. Presidents should attempt to resolve as many issues as possible before a new administration comes onto the scene.

Court-packing, or politicizing federal courts with partisan judges, is certainly frowned upon because of a principle that leaders of courts should remain politically neutral. However, the Constitution places no limitation on who the president can or cannot nominate. Maybe our founding fathers had more faith in the integrity of the system they built, or maybe they just didn’t foresee an issue; but regardless, the only way to prevent court-packing is to elect congresspeople who will reject partisan judges or a president who won’t appoint them. The bottom line is, whether or not something is fair is irrelevant; those in charge, regardless of their party affiliation, will always take advantage of their power, especially when the law is on their side. The logical path to preventing corruption is choosing leaders who we believe in and ensuring that our laws reflect our changing values.

Photo Credit: Raw Story


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