The effort to fill the vacancy caused by Justice Ginsburg’s recent passing is not about former President Barack Obama’s unsuccessful nomination of Judge Garland in 2016. It is surprising, then, that Judge Barrett’s detractors seem to oppose her chiefly because they claim that another jurist who had good qualifications was not confirmed by the United States Senate in 2016.
We first dispose of several subsidiary arguments. The claim that the ACA remains at stake in active litigation demonstrates a striking misapprehension of both appellate procedure and the current texture of the Supreme Court. The 5th Circuit Court of Appeals held the ACA unconstitutional. A rump Supreme Court would likely deadlock 4-4, leaving this decision in place, and thus dooming the ACA with or without a Justice Barrett.
Nor is Roe v. Wade at stake. Neither the Congress nor any state legislature has passed any measure that does not easily pass muster under existing precedent.
Hypotheticals about the election are even further afield.
Although Judge Barrett’s detractors would reflexively oppose any nominee by any Republican president, they are particularly perturbed by her training under the late Justice Scalia, her resulting moral clarity on protecting the unborn and strict adherence to the Constitution, and her diverse family. Suffice it to say that Judge Garland lacked these qualities, notwithstanding his comparable academic and legal qualifications. Perhaps, then, Democrats are perturbed because Judge Barrett combines Justice Scalia’s intellect and Vice President Pence’s poise and demeanor, rendering her the foremost American stateswoman since at least Elanor Roosevelt.
Even more appalling to Judge Barrett’s detractors is the prospect of another “Republican” justice on a Court that is supposed to be “apolitical.” As the story goes, a half a century of legislation from the bench, dating back at least to Roe v. Wade, all enacted by unelected justices who were striking down legislation passed by elected legislators, and signed by elected executives, is now in jeopardy.
We now turn to the text of the Constitution. Article II, Section 2, states that “[The president] shall have Power, . . . and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States…” The Senate did not consent in 2016. The Senate is expected to consent in 2020. The Constitution says nothing about the timing or process for judicial confirmations and the historical record discloses no clear tradition other than some improvident remarks in 2016. These remarks, like dissenting Supreme Court opinions, or cherry picked historical examples, carry no constitutional weight.
Legislators may not enact laws that cannot be repealed by future legislatures. Nor may they amend the Constitution through speeches in committee or on Sunday talk shows. The President retains the power to nominate and/or confirm a justice at any time before or after any election. The Senate may confirm that justice with or without committee hearings on any schedule it chooses. This analysis, unlike any unfounded notions about election year nominations, finds clear support in the Constitution. See Article 1, Section 5 (“a majority of each [House] shall constitute a quorum to do business. . . . [e]ach House may determine the Rules of its Proceedings.”)
In the last round of nominations to the Florida Supreme Court, a liberal legislator filed a lawsuit because the Governor would leave a vacancy on the Florida Supreme Court for more than the several months. In fact, the critics’ only cogent reason for opposing the nomination was that a rule allowing the Governor to delay the seating of a Supreme Court Justice could create an unacceptably long vacancy and the potential for tie votes, precisely the problem they are causing by calling for delay on the United States Supreme Court. By demanding an intervening election, and denigrating Trump’s attempts to quickly fill the vacancy, Democrats are now undermining the values that they championed only weeks ago. By contrast, Republicans at least waited over four years before supposedly reversing course, and only under very different circumstances.
Constitutional separation of powers transcends politics. The criticism of the timing of Justice Barrett’s nomination process boils down not to what was done in 2016, or how it was done, but what was said at the time. Fortunately, the constitutional separation of powers analysis depends on what was written in Philadelphia in 1787, not on what was said in Washington in 2016. Nonetheless, improvident remarks by those still in power should be retracted or clarified to state that when the Senate opposes the President, an intervening election may break that impasse and spare the country an embarrassing spectacle of a sitting jurist being hectored and then rejected. Judge Barrett’s nomination is constitutional and lawful and should be handled without regard to the timing of the election, the results thereof, nonbinding committee debate, or talk show pontification.
— Mike Beltran is a state representative who serves House District 57