Don’t give in to Democrats’ Supreme Court extortion

If Republicans don’t appoint a new justice, they will forfeit the authority to govern — along with the support of voters.

The seats for the nine judges of the Supreme Court in Washington. Picture: Getty

President Trump’s determination to fill the Supreme Court vacancy has enraged Democrats. Senate Minority Leader Chuck Schumer ominously warns that if Justice Ruth Bader Ginsburg is replaced and Democrats gain a Senate majority, “nothing is off the table”. It’s not clear what was off the table before: Democrats had already threatened to end the filibuster, ignore pay-as-you-go rules, make the District of Columbia and Puerto Rico states and pack the court.

The media frantically replays 2016 clips of Republican senators like Lindsey Graham, now Judiciary Committee chairman, explaining their refusal to give Merrick Garland a hearing. They are less likely to mention the many Democrats who flip-flopped in the opposite direction. But Republicans note that their objection to election-year nominations applied when the President’s party was a Senate minority. They reason that voters gave them the majority in 2014 as a brake on President Obama’s ambitions.

The media breathlessly cites Ginsburg’s dying wish that the next president appoint her successor, as if she had any claim to the seat after her death. It’s reminiscent of Democratic outrage a decade ago that Republican Scott Brown should occupy Ted Kennedy’s Senate seat, as if it belonged to the family and not the state of Massachusetts. And never mind Ginsburg’s own 2016 comments in favour of approving an election-year nominee or her decision not to retire before 2015, when Mr Obama and a Democratic Senate could have appointed her successor.

The media breathlessly cites Ginsburg’s dying wish that the next president appoint her successor, as if she had any claim to the seat after her death. Picture: AFP

The “Biden rule” — which the then-Judiciary chairman put forth in 1992, the vice president rejected in 2016, and the nominee has re-embraced in 2020 — is that the president shouldn’t make a nomination to the Supreme Court in an election year so that voters have a chance to make their voices heard. That implies that presidential elections should be national referendums on the high court — a view that is of a piece with liberal judicial philosophy in that it is at odds with the Constitution.

If Republicans give in to Democratic extortion, it will never end, and they will forfeit the authority to govern — along with the support of the voters who make up their electoral base. If Republican senators fail to stand up and fight back, many of the party’s most committed supporters will decide it is time to quit the party and perhaps even politics. They won’t support Joe Biden or other Democrats, but they have little reason to go to the polls on Election Day.

Many voters were inspired by Mr Trump’s promise to take on the establishment and drain the swamp. Picture: AFP

Many voters were inspired by Mr Trump’s promise to take on the establishment and drain the swamp. They wish he had kept all his promises, but they also credit him for having the courage to try. Some pundits claim beleaguered Republican senators from purple states — Arizona’s Martha McSally, Colorado’s Cory Gardner, North Carolina’s Thom Tillis — can demonstrate their independence from Mr Trump, increase their election odds, and appeal to moderate voters by joining a Democratic effort to keep the seat open. The committed conservative voters those senators would lose would more than offset any such gains.

The best way to reduce the intensity of fights over judicial nominations is for the other branches of government to reclaim their constitutional powers. Liberal judges have assumed too much power; they want to write the laws, not just interpret them. Society’s most intense debates over the limits on individual autonomy and the proper role of government should not be decided by five unelected jurists, but rather by political leaders accountable to the voters.

Bobby Jindal was governor of Louisiana, 2008-16, and a candidate for the 2016 Republican presidential nomination.