Government Watch / Opinion / Politics

Senate’s Supreme Dilemma: When to Vote

supremeFact:   Liberal jurist and Supreme Court Justice Ruth Ginsburg died on September 18.  That event, not expected prior to 2020 elections, has thrown a wrench into the works.  Most immediately, it puts pressure on Senate Republicans to seat a nominee, while preserving their majority.

Fact:  President Trump intends to nominate a woman to replace Ginsburg.  The nominee will be qualified and judicially conservative, meaning apt to construe words in the Constitution strictly, not filling in blanks, legislating, getting creative, or judicially activist – as Ginsburg was.

Fact:   A concern of conservatives – and liberals – is how the appointee will interpret constitutional provisions and decisions, as well as what weight she accords stare decisis or precedent.  Of special concern is how she sees the 1973 Roe v. Wade decision, which creatively inferred a constitutional right to abortion.

Fact:  The contest will be bitter, as Republican appointees outnumbered Democrats 5-4 before Ginsberg died.  The new mix of 6-3 could roll back activism.  To Republicans, this is promising – worth risking the Senate. To Democrats, it is a perilous, as they revere activism and Roe.

Fact:  The 53-47 Republican-controlled Senate will vote on Trump’s nomination.  See, The vote could be before or after elections, late as January 3rd.

Fact:  While a pre-election vote allows deliberation, it imperils moderate Republicans, like Susan Collins of Maine, Thom Tillis of North Carolina, and Cory Gardner of Colorado.  If forced to vote pre-election, some may balk.  Leadership must count carefully, as losing 3 would require Vice President Pence as tiebreaker; losing 4 would scotch the nomination.

Fact:  Conversely, putting the vote off until after elections presents difficulties. Time would be short; Democrats would delay.  If Democrats won the White House or Senate, they would argue legitimacy requires no vote.  They would pressure Republicans, arguing the new President should nominate, and new Senate confirm.  These obstacles could be overcome, but downstream effects on nominations, judicial legitimacy, and possible court-packing – could be serious.

Fact:  Historically, a nominee by a President of the same party has been confirmed in an election year, while one presented by a president of the opposing party has not.  Thus, in February 2016, when Justice Antonin Scalia – a Republican – died, President Obama nominated Merrick Garland to replace him. A Republican Senate did not vote.  Trump won in 2016, and Neil Gorsuch was then nominated and confirmed.

Fact:  This distinction is challenged by Democrats, who argue any nomination in an election year should wait.  But that puts the seat in double jeopardy:  If Trump wins, but Senate goes Democrat, that nixes the confirmation. If Biden wins, regardless of Senate control, the nominee becomes Biden’s.

Fact:  The Senate faces a dilemma.  They can vote on Trump’s nominee now, putting future control of the Senate in jeopardy.  That would seat a conservative – changing judicial history – but might trigger court-packing if Biden won and Senate flipped.  Or Republicans could put off the vote, giving moderates a pass but risking post-election pressure.  Finally, they could allow moderates to vote “no,” yet squeak by with enough votes pre-election to gild the lily.

In the final analysis, peripheral facts play big.  If Trump’s pick is supremely qualified, and stands up well to scrutiny, one or two Democrats might flip, like conservative Joe Manchin of West Virginia or endangered Alabama Senator Doug Jones, who might pull a Sun-Tzu.

Another peripheral fact is wild polling.  If a moderate felt they could vote yes, they might accede to a pre-election vote. Of note too are the “dying words” of Ginsberg, who reportedly said she preferred a vote wait until the next president was seated.

Most ominously, Democrats threaten to pack the Court if Biden wins and they get the Senate. That prospect is interesting, sure to stir opposition.  It could hurt eventually Democrats, while fracturing the court, upending precedent, and undermining the legitimacy of decisions.

Two final facts about court-packing.  Franklin Delano Roosevelt tried, and it backfired.  He thought he could push six justices onto the Court, politicize it. The move almost cost him everything – domestic legislation, support for “lend lease,” reelection.  The idea burned him.

Finally, little mentioned, Ginsberg was strongly opposed to court packing.  In 2019, she was aware of the implications, said:  “Nine seems to be a good number, it’s been that way for a long time,” adding “I think it was a bad idea when Franklin Delano Roosevelt tried to pack the court.”

Pressed by National Public Radio, she got precise:  “If anything would make the court look partisan, it would be that – one side saying, ‘when we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’” No, that is a bad idea. See

So, if we are to take the Justice’s words into account, perhaps Democrats eager to tip the Court should reconsider FDR and Ginsburg – both of whom disfavored court-packing.  If court-packing is politically untenable, it goes away.  If court-packing fades, when should they vote?

In the end, President Trump’s nominee must be seated.  The debate around that nominee will froth, regardless of whether the vote is before or after.  The issue, and implications for abortion, Obamacare, immigration, national security, and a host of legal issues, is significant.

If Senate Republicans can explain their position, and afford to lose one or two votes, the issue should be resolved fast.  If fear of reelection dominates Senate Republicans, they might consider the prospect of lose-lose, win-lose, and win-win.  If they wait until after the election, they may lose high ground, critical time, Senate control, and the White House, causing momentum to fall back on them, gaining absolutely nothing – including no new seat.

If they vote pre-election, they should win, take the issue off the table, leave a legacy, add support to the base – even if moderate Senators must explain.  Net-net, this is a tough one, but action beats waiting – and if the election should by a harrowing mishap go to the Supreme Court, the composition will be … different.  Just a thought.

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2 months ago

The GOP needs to realize that the radical Dims will NEVER be fair in anything they do. We should not wait out of any sense of fairness. We need a full Court as there will be many legal challenges over the upcoming election. Those states mailing out ballots to “resident” will need to be challenged and we do not want a tied court (now that Roberts has turned liberal)

2 months ago

The reality is the Republican Senate must vote to confirm a Trump nominee to the SC BEFORE the end of the year, because there is no guarantee that the GOP will hold control of the Senate in the up-coming elections and there is a high degree of risk that the Democrats, through the mostly Democrat friendly courts, may be successful in stealing the WH. If either of those two items comes to pass, then adding a constitutionally conservative judge to the SC goes to zero. Democrats have already repeated their desire to pack the SC will enough far left liberals… Read more »

Enuf Said
2 months ago

If the Democraps can hold a ridiculous, unfounded attempt at impeachment DURING an election year–THEN the Repugs can certainly nominate a SCOTUS candidate during an election year.

Thomas F. Olszewski
2 months ago

Cut the crap and put a nominee up. The demoncrats would love to screw this country even more. If they had the the chance sure as god made little green apples they would.

2 months ago

Rest in peace, Justice Bader Ginsburg.

Difficult decision, indeed. Precedence leans in favor of waiting until after the election, but this also is a golden opportunity to help preserve our country as we know it. If the dems take majorities in Congress and the White House, it’s all over…

I’ll hold my nose and offer: if there’s nothing in the Constitution that contradicts the recommendation, then let’s “get while the gettin’s good”. If the other side of the aisle comprised reasonable, moderate democrats, I might feel differently. But they’re lunatics, sorry, and they should be stopped at every opportunity.

Last edited 2 months ago by Kim
Alex Pilon
2 months ago

The Dems legislate through via the Supreme Court, so yes the Senate must vote to confirm this year! Otherwise America will continue to go down the Socialist path the the left is pushing

2 months ago

The Democrats of the Democrat National Criminals will never be okay with anything that President Trump does. President Obama was a lame duck – Trump is not. Nominate and have a vote. Get it over with. Stop the hand wringing and rip that bandage off! It is what is best for the country.

Enuf Said
2 months ago

Outnumbered5-4— If you consider John Roberts a CONSERVATIVE– you are a brick short of a pile. Someone has SOMETHING on Roberts (as Maxe-Pad Waters said–Obozo has something on EVERYBODY). Oh, yes–he will throw out a crumb to conservatives on SMALL issues–BUT when it comes down to the real meat and potatoes– NOW–He WILL vote along with the other liberal judges. When Trump’s appointee is confirmed it will STILL only be 5-4.

2 months ago

There is NO dilemma. Following the constitution & history dictates an appointment to the Supreme Court. Add to that, the Dems have said repeatedly this election will be decided in the court. This means all the more reason to not have a vacant seat. This is not difficult. It’s only difficult for those wanting the seat left vacant for nefarious reasons.

Art A
2 months ago

A brilliant individual from West Virginia once told me that “There is no fair way to lose.” Nominate,discuss,VOTE FOR CONFORMATION ASAP. Don’t lose the high ground. If you are a Senator that feels that your position is in such jeopardy that you may not be reelected,maybe your are not performing very well for your constituents. If this vote is your last, make it count for the future. Take one for the team. MAGA/KAF/KAG 2020.

Wayne Peterkin
2 months ago

The bottom line is that constitutionally, federal courts do NOT have the authority to create or change laws. That responsibility belongs solely to the legislature even though Ginsberg disagreed. Therefore, activist judges are exceeding their constitutionally limited powers and should never be nominated or confirmed to the bench. President Trump is still president. He has maintained a list of candidates and should nominate a solid constitutionalist as Ginsberg’s replacement. Ginsberg herself back in 2016 said that Obama had that power to replace Scalia during an election year even though Obama was a lame duck, and she was right, even though… Read more »

2 months ago

Why on earth should the Senate have a dilemma as to when or whether to vote to fill the Supreme Court vacancy? It’s the President’s right and duty to nominate someone and it’s their right and duty to help him fill that seat ASAP. We NEED the full Supreme Court in place and anyone standing in the way of that has an agenda – that isn’t in the best interest of America.

Glenn Lego
2 months ago

Vote tomorrow and to heck with the Democrats!

Lynn Miller
2 months ago

America is in an insurgency, and faces in this current era, all out social warfare. The Democrats are not attempting to merely bring a Sweden style socialism to the United States. The end goal for Democrats is what was begun in the 1950s that McCarthy paid a high price for identifying: Communism. Republicans MUST VOTE AND SEAT a Constitutional cleric to the SCOTUS NOW… or the nation will face the ultimate loss of its Constitutional governance. No Delay, The Senate MUST act NOW.

Patriot Will
2 months ago

President Trump is a Republican. Senate is majority Republican. Thus, a new Supreme Court Justice should be voted in ASAP.

2 months ago

Don’t wait! Select a nominee for SCOTUS and deliver to the senate for approval! This is the constitutional authority of the president and senate! Unlike the phony unethical and illegal impeachment, this is a legal requirement of the president! Don’t submit to the bullies of the democrat party! Get it done!

Phyllis Poole
2 months ago

It’s appalling that our congress is so divided. Some don’t act like adults. They’re like school kids. They should all be on the same side of the basic laws. Our nation. Was founded “under God”. That’s what makes us unique to other nations! But the devil crept into some of their minds. Anytime a person thinks it’s ok to murder another human whether they have age on their side or not is straight from the devil and those people should not have been voted in to our congress. Different parties are for kids. We should disban those and vote on… Read more »

Phil Hammersley
2 months ago

All DIMMs on national level are THUGS. If you think otherwise, name one who has condemned the rioters BY ORGANIZATION! Condolences to Ginsberg’s family BUT she did not revere or honor our Constitution. She recommended the South African constitution to a newly-formed country–ridiculous. She performed a “gay” wedding while the Court had a case under review. She should have recused herself.
Nominate and vote on a constitutionalist ASAP. Ignore the paid-for charges from the snakes on the left. No more BS like they did to Kavanaugh !

Morty Tupperman
2 months ago

I’mm betting that the Republicans capitulate to the Democrats and wait until after the election. With very few exceptions, they are a pretty spineless group.

Stephen Russell
2 months ago

Once named Vote or streamline debate to confirm use televideo sessions vs F2F to cut costs.
Speed up process,, done before

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