Just when you thought 5780 couldn’t do any more damage, the waning moments of the old year left us with the news of the death of Supreme Court Justice Ruth Bader Ginsburg. Between fights over coronavirus, social justice issues, and climate change, 5780 gave us plenty to argue about. Now we can add Supreme Court nominations to the list. If there is one thing this country could not afford right now, it’s another heated debate.
And the blame for this can be placed squarely on the shoulders of Senate Majority Leader Mitch McConnell. Most of us will remember back in 2016, when Justice Antonin Scalia passed away. At the time, McConnell declined to even hold a hearing for President Barack Obama’s nomination, Merrick Garland. McConnell did so on the basis that the sitting president shouldn’t have the power in his final year of his term to select a justice. Instead, the decision should be in the hands of the voters, who were set to choose a new president that November. The rest is history. America voted President Trump in, and subsequently got Justice Neil Gorsuch.
If McConnell would be consistent, this year - with less than two months until the next presidential election - he would wait until after the election to hold any confirmation hearings. So now, McConnell has a decision to make. Does he solidify his decision by once again delaying confirmation until after the election, or does he reverse his original decision by quickly confirming whomever President Trump nominates? One thing to consider is that while there was uproar in 2016, it will be nothing compared to what will happen now. Back then, the seat that was being replaced was a conservative nomination. This time, Ruth Bader Ginsburg was perhaps the most famous liberal in the country. Confirming a nomination here would be flipping a seat. Doing this will surely lead to bedlam in the streets.
Don’t kid yourself: This one can have extremely severe ramifications to public safety. If there’s one thing we should have learned over the last four years, it’s that the Left has no issue organizing to protest when they don’t get what they want. The day after the 2016 elections saw mass protests, and that was before Trump did anything. His election lead to the rise of the Women’s March. There were protests following the confirmation of Brett Kavanaugh that ended with the attempt to break down the doors of the Supreme Court. And of course, we know of the tremendous damage done by this summer’s protests following the death of George Floyd. Leftists know how to organize, and if there is one thing that will raise the temperature of the country, it’s Mitch McConnell ignoring his own rule and flipping a liberal seat on the highest court in the land.
Either way, McConnell will leave his mark on this country for years to come. Should he decide not to confirm, he will have established a new Senate rule that will likely be broken the next chance someone gets, but breaking it will be a huge deal, especially since McConnell would have used it on both sides. Additionally, there may be a strategic reason to withhold confirmation. I believe that one of the things that got Trump elected in 2016 was the vacant Supreme Court seat. It drove conservative voters to the polls, especially in the swing states. Putting a Supreme Court seat on the ballot may have the same effect. Voters may once again hold their nose and vote to reelect President Trump if it means flipping a seat. The voters that Donald Trump is losing are the “never Trump” crowd. A chance to ironically make Neil Gorsuch the swing vote in the Supreme Court may entice them back.
However, let’s be realistic about this: McConnell isn’t giving up the chance to leave his mark in other ways on this country. At least, he’s not leaving it to chance. Replacing Ginsburg on the bench with Conservative favorite Amy Coney Barrett, or perhaps a dark horse like Ted Cruz, would be the last image of McConnell before he retires the next time his seat is up after he loses the Senate in November. Because that is what will happen. I believe this is the last chance the Republicans have of keeping the Senate and the presidency. If McConnell shows the country that he represents the honest party, and that the voters will truly decide who is on the bench, that may be the trick the President needs to stay in the White House. However, if (and let’s be honest – when) McConnell goes through with this, he will have thrown away a golden opportunity at keeping the Republicans in power. It’s not even that big of a risk. He’s playing with house money. It wasn’t even an Originalist seat. This is the time to gamble.
The funny thing is that this could all have been avoided. Years ago, Supreme Court confirmations were a formality. In recent years, it has become highly politicized. I don’t believe we will ever see a confirmation again unless the President and Senate majority are of the same party. All McConnell had to do in 2016 was hold the confirmation hearing and then have the Republicans vote to not confirm. Democrats have since shown that the answers given during the confirmation hearing matter not when it comes to confirming a nomination. The Republicans could have started that early. The fact that he chose to not do that lead us to where we are today. Had he held hearings for Garland, and denied his confirmation, Gorsuch would still be on the bench, as would whomever President Trump chooses to replace Ginsburg. This is just another example of a decision made by the Senate Majority Leader that comes back to bite them later.
Either way McConnell decides to go, it is, of course, the American people who will lose. America can’t afford another fight to compound on an already horrendous year. I shudder to think what this country will look like in a month if this nominee goes through, and if I am correct, you all know who is to blame.
Izzo Zwiren is the host of The Jewish Living Podcast, where he and his guests delve into any and all areas of Orthodox Judaism.