ADA, Ohio -- News flash: Most politicians are hypocrites.
The battle over filling Justice Antonin Scalia’s seat on the U.S. Supreme Court began the moment his death became public during President Barack Obama’s final year in office. The Democratic president said: “I plan to fulfill my constitutional responsibilities to nominate a successor.”
Sen. Mitch McConnell, the Republican majority leader, countered minutes later that, “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.” The candidates for the Republican presidential nomination were united in their support of McConnell’s position.
Now that the partisan fortunes are reversed, Democratic presidential nominee Joe Biden and his party want to wait to fill Justice Ruth Bader Ginsburg’s seat, while President Donald Trump, Sen. McConnell, and all but a small handful of the Republican members of the Senate insist on fulfilling their “constitutional responsibilities” prior to an election that is less than two months away.
Unfortunately, the real fight over filling Ginsburg’s seat, as it was over filling Scalia’s seat, is about partisan politics: President Trump and the Republican-controlled Senate wish to cement their legacy by appointing a conservative to replace the liberal Ginsburg, whereas Biden and the Democrats want to wait until after the election because they hope that Biden will be the next president and that the Democrats will win control of the Senate. This is obvious to anybody who has paid even a minute’s attention to the avalanche of commentary about replacing Ginsburg.
But what is not so obvious is that both Republicans and Democrats are wrong to default to partisan politics during this potentially transformative moment in the history of the Supreme Court. In honor of Justice Ginsburg, the most influential proponent of women’s equal rights under law in the history of the United States, it is important to point out that partisan usage of the appointment process is not what the original understanding of the Constitution demands.
Instead, the original understanding is for, to quote James Madison, “a bench happily filled” with the esteemed likes of “[George] Wythe, [John] Blair, and [Edmund] Pendleton”: leading jurists of Madison’s day. The debates during the Constitutional Convention of 1787 were silent on the criteria for appointment precisely because the delegates assumed that the basis of selection would be merit.
Scott Douglas Gerber is a professor of law at Ohio Northern University.
Even Alexander Hamilton, who saw a limited role for the Senate in the appointment process, believed that the Senate could — and should — reject a nominee who was lacking in merit. “Thus it could hardly happen,” Hamilton wrote in The Federalist Papers, “that the majority of the Senate would feel any other complacency toward the object of an appointment than such as the appearance of merit might inspire and the proofs of the want of it destroy.”
Although the vast majority of pundits appear to believe that, given the realities of constitutional politics, a merit-based appointment process is not realistic, I disagree. To borrow from the late Henry Abraham, almost certainly the leading scholar of the appointment process who ever lived, “merit need not, indeed does not, ‘lie in the eye of the beholder,’ It is eminently identifiable and attainable.”
And whatever one may have thought about Justice Ginsburg’s liberal politics, it is difficult to deny that the president who nominated her to the Supreme Court, Bill Clinton, and the Senate that overwhelmingly confirmed her 96 to 3, “happily filled” the court with a jurist of merit.
Indeed, as rancorous as the debate has already been about filling her seat, there has been virtual unanimity from both the left and the right that Ginsburg was a brilliant lawyer and judge who forever changed the nature of women’s equal rights under law, and that all of us — men and women alike — are better for it.
The most fitting tribute that the Republican president and his Democratic opponents can therefore pay to Justice Ginsburg is to put aside partisan politics and work together to appoint a successor of comparable merit. The Constitution requires no less.
Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787” (Oxford University Press).
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