The Republican Assault on our Checks and Balances, Through Judicial Nominations

By Herman Schwartz, Professor of Law Emeritus, American University Washington College of Law

When Justice Antonin Scalia died four and a half years ago in February 2017 the Senate Republicans insisted that no Supreme Court nomination be made during a presidential election year, that it should be left to the American people to decide who should have that choice.  Their blithe reversal of this position now that a Republican president is in office and not assured of reelection has plunged our democracy into one of its worst constitutional crises since the Civil war, a rupture between the parties that will make it almost impossible for our system of separated powers to function effectively.  Unlike a parliamentary system where the role of the minority party is to oppose, our checks and balances system requires a great deal of coordination, compromise, and trust in order to avoid gridlock and stalemate.

The American people don’t support this Republican power grab.  Although some Washington cynics may believe that political hypocrisy is not to be taken seriously, most Americans apparently feel differently.  According to a Reuters poll taken soon after Justice Ruth Bader Ginsburg died, 62% of those polled believe that the choice of her successor should be made by the president who will be elected in November, as she hoped it would be.  Pres. Trump and the current Republican Senate majority represent only a minority of the American people.  Trump lost the popular vote by almost 3 million votes and the current 53 Republican senators represent only 47% of the American people. In 2018 Senate elections they won only 38% of the electorate.  Since two Senators have already announced their refusal to vote for a Supreme Court justice in an election year and the Republicans have only a 53-47 vote majority, if Trump’ nominee is confirmed it will be by only a 51-49 margin.

Indeed, why should this Senate decide who will be Justice Ginsburg’s successor?  The Republican majority is even more precarious than President Trump’s reelection.  As Senator John Cornyn (R-Texas) wrote 4 ½ years ago, “Let the people decide.”  Not only will confirmation of a Supreme Court nominee at this time undermine our democracy, but it will have dire consequences for the health and welfare of the American people.  A week after the election, the Court will hear a challenge by the Trump administration and a group of Republican controlled states to the very existence of the Affordable Care Act.  A court with six conservative members including three Trump nominees and two current justices who have already voted twice to strike down the Affordable Care Act, will probably have little difficulty mustering the five necessary to overturn the law.

The consequences of such an outcome will be little short of catastrophic.  In the midst of a raging pandemic that has already killed over 200,000 Americans and a major economic crisis, millions of people including those benefiting from the Act’s expansion of Medicaid would lose their insurance protection.  Young people aged 26 and under will be particularly affected because they will no longer be on their parents’ insurance.  Moreover, insurance companies will once again be able to deny coverage to people with pre-existing conditions except at exorbitant premiums that few can afford; this is of special concern today because while most people survive covid-19, many of the nearly 7 million infected continue to suffer the long-term effects.  Access to contraception and abortion has already been made much more difficult for many women and Roe v. Wade will probably be outright overruled, even though more than 70% of Americans support the decision.  And since the Republicans have failed to produce any health plan after four years of pretending to try, countless millions of Americans will continue to die for lack of affordable healthcare.

The Republican attack on environmental protection will aggravate health problems even more.  The 50-year-old federal effort to protect and preserve our planet and to clean our air and water has been eviscerated by Pres. Trump and his appointees at the Environmental Protection Agency and other agencies despite the seemingly unending series of terrible wildfires, tornadoes, hurricanes, and storms that have made so many parts of our country virtually uninhabitable, and the pollution that threatens the health of so many children and adults.  Although many lower courts have blocked some of the Trump regulations, many of these cases will soon be coming to the High Court where the fate of these rulings is uncertain at best.

The Supreme Court that comes into being after Justice Ginsburg’s seat is filled will dominate our nation for decades to come.  It will shape almost every aspect of some of the most important years of those 18- to 45-years-old today.  It is not, however, all-powerful.  Congress, the presidency and the state governments are still the primary lawmakers.  The Supreme Court’s rulings can be limited – Congress can undo or revise the Court’s statutory interpretations and even its constitutional rulings can sometimes be gotten around.

For these checks to function, to “keep” our Republic as Benjamin Franklin put it, we must fulfill our duty as citizens by letting our elected representatives know what we demand of them and by enforcing those demands by the most effective way possible – we must vote.

Herman Schwartz is a Professor of Law Emeritus at American University Washington College of Law. Throughout a long career in academia, publishing and community service, he has focused his attention and the world’s on issues of civil rights and civil liberties as they have played out in courts and prisons across the globe. He has worked with the United Nations, the human rights advocacy group Helsinki Watch, the U.S./Israel Civil Liberties Law Program (which he founded), the ACLU Prison Project (which he founded), Washington College of Law’s Human Rights Center and other organizations.