Republicans should move now.
While we did not agree with many of Justice Ruth Bader Ginsburg’s views about the Constitution or the judicial function, we never doubted her industry, dedication, gumption, civility, or patriotism. We send our condolences to all who mourn her passing.
Justice Ginsburg almost certainly had more fans than any other justice in U.S. history, with her great friend Justice Antonin Scalia in second place. The wide acclaim, and wide opprobrium, for these justices is a sign of something that has gone wrong in our political culture, in which the Supreme Court looms entirely too large. Her death has therefore led not just to mourning but to the start of a political convulsion.
Many commentators, mostly Democrats, are saying that the Republicans have an obligation to show restraint: to leave this vacancy to be filled by whoever wins the presidential election rather than moving forward with a nomination and hearings. They say that in 2016, when President Obama nominated Merrick Garland to replace Scalia, Republicans argued that no nomination should proceed right before a presidential election and that Republicans should adhere to that same principle now. They say also that if Republicans fill the seat, Democrats will retaliate next year by expanding the Supreme Court to add more liberals to it.
The argument from 2016 is unavailing. Our own view was that the Republicans’ point about acting in an election year was secondary to the imperative to advance constitutionalism on the Court. But the most careful articulations of the Republican position in 2016 held that when a Supreme Court vacancy arose while the White House and Senate were controlled by opposite parties and a presidential election was coming soon, the vacancy should be filled by the winner of that election. In short, the voters should be asked to break the deadlock between two branches they elected. That condition does not apply today, as Republicans have won a Senate majority in three consecutive elections. (It is tempting, because it would be useful for conservatives, to say that Democrats should be held to what many of them said in 2016: that the Senate had a constitutional obligation to proceed with any nomination the president made. But that argument never had any grounding in the Constitution.)
The notion that Republicans should calm troubled waters by standing down is a little more beguiling. But it should also be rejected. Supreme Court nominations have become incendiary events because the Court has strayed so far from its proper constitutional role. There is no need to be coy: What we have in mind most of all, just like progressive activists, is abortion. In Roe v. Wade, the Court swept away the laws of 50 states and trampled on the most fundamental of human rights, and it did it without any justification in the text, original understanding, logic, structure, or history of the Constitution. Even legal scholars who approve of the policy result have admitted as much. A Court that claims that power for itself can commit many other enormities. And the Democratic Party, very much including its current presidential nominee, maintains a litmus test that any Supreme Court nominee must pledge fealty to that anti-constitutional ruling.
The rift between constitutional law and the Constitution has done great damage to our political culture. It would be perverse to give up a chance to pull them back together because of that damage. And it would be a mistake to allow the risk of future progressive mischief to cause conservatives to refrain from taking that chance.
President Trump, like President Obama in 2016, has the constitutional power to nominate a Supreme Court justice. He should exercise that power to put forward someone with a track record of respect for the law and for its limits on the judiciary. The Senate, as it did in 2016, will then have the power to decide whether to proceed. If the nominee meets threshold conditions of quality and judicial philosophy, we hope it will schedule hearings expeditiously and vote whenever enough time for deliberation has passed.