The Supreme Court vacancy — yet another congressional food fight

The passing of Justice Ruth Bader Ginsburg with 45 days left in the presidential campaign put the Supreme Court and its role front-and-center in the election, creating an eighth critical factor for the race.

Given Ginsburg’s role as a leading liberal justice, the first rush of energy is coming from the Democratic side, whose base previously showed less enthusiasm for voting than have the supporters of President Trump. If the Democrats overplay their hand, however, they could lose this winning edge as happened in 2018, when the contentious confirmation hearing for Justice Brett Kavanaugh wound up energizing Republicans. Similarly, if Trump nominates too deep a conservative, Democrats will be able to use that to build further momentum to their campaign in the final days. The jury is out on who will win this battle.

There is no doubt that the president will be exercising his authority to nominate a justice, and he has already said it will be a woman. With an election looming, the clear favorite would seem to be Barbara Lagoa, a Hispanic with deep roots in Florida, a critical swing state, and who was confirmed last year to the federal bench by a Senate vote of 85-15. Joe Biden, in contrast, has not put out a list, but he did say earlier in the campaign that he plans to name a black woman to the court if he gets the chance. He will be under more pressure now to put out a list of names — but doing so could split his base, as a result of his choices, so I would not expect him to make that leap.

House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles Schumer (D-N.Y.) have “gone to the mattresses” here, threatening retaliation if the president moves ahead with a nomination. But most Americans are not going to understand complex political process arguments — they know that politicians of both parties routinely make disingenuous arguments to support their positions and that what really matters is who actually controls the presidency and the Senate. We do not have the same system as they have in the United Kingdom, in which the prime minister’s office is sealed up during the election period to be reopened by the winner. Instead we have a system of fixed terms and an unfettered transition period, which certainly President Barack Obama used up with new rules and executive orders until the last day. Consequently, the voters are likely to look at a Trump nominee and decide whether she is a good pick for the country or not, with only the two bases caring about the fairness or unfairness of what happened with Merrick Garland.

The Supreme Court, even after recent Trump nominees were added to the court, is the institution with the highest credibility of the three branches of government, according to a poll done by HarrisX last week for George Washington University. When asked about today’s court, 65 percent of respondents said that it is working, compared to only 30 percent who said that Congress is working today. In fact, a full 70 percent said that Congress is NOT working today, and the fight over justices may say more about discontent with Congress and its inability to reach bipartisan compromises than its impact on the court.

The modern fight over courts and justices goes back to the original “Borking” of a Republican nominee in 1987, during a day when Supreme Court nominees needed 60 votes and nominee Robert Bork wound up with only 42. President Reagan then replaced Robert Bork with a more moderate nominee who was promptly approved. Fast forward to 2013 when Republican senators were blocking liberal nominees to the D.C. Circuit court and, rather than replace them, then-Senate Majority Leader Harry Reid (D-Nev.) used a parliamentary maneuver to change the rules, eliminating the filibuster for such nominees on a majority vote of the Senate, rather than the two-thirds vote typically required for a major rules change. The slippery slope had begun. The 2014 midterm election was a wipe-out for Democrats in the Senate, with Reid losing control.

Since then, the Senate has been in Republican hands, with their majority expanded in 2018, and so the Reid maneuver backfired, as it led to Senate Majority Leader Mitch McConnell (R-Ky.) eliminating the 60-vote requirement for Supreme Court Justices and further using his power to block the vote on Merrick Garland. Reid and several of his former staffers are among the Democratic insiders now leading an effort to eliminate the filibuster entirely. 

However, more partisanship is not the reform that the voters favor to end this continually escalating political division. In that same HarrisX poll approving of the court and its major decisions, the sampling also found that voters would overwhelmingly replace the current system of Supreme Court appointments for life with either a fixed term or a set retirement age. Life appointments were supposed to put justices above politics, even if they were appointed by political officials, but the end of the filibuster has added more partisanship to the whole process that may outweigh such considerations. Such reforms could create greater certainty about when justices will be up for appointment, rather than the current system of leaving it entirely to when they retire or die.

The threats and charges going back and forth between leaders in Congress today typify why the ratings of Congress are so low. Rather than threatening to “pack” the court or impeach the president, legislative leaders should be looking to reform and reset the process to take it out of politics once again by setting some fair parameters on service and restoring bipartisan requirements. I am not expecting anyone to rise to this level of trying to find more sensible solutions during this campaign. Instead, we are going to have your basic political food fight coming on top of the failure to pass further virus stimulus relief. Government shutdown, anyone?

Mark Penn is a managing partner of the Stagwell Group, a global organization of digital-first marketing companies, as well as chairman of the Harris Poll and author of “Microtrends Squared.” He also is CEO of MDC Partners, an advertising and marketing firm. He served as pollster and adviser to former President Clinton from 1995 to 2000, including during Clinton’s impeachment. You can follow him on Twitter @Mark_Penn.