Republicans in the Senate can confirm Coney Barrett with a single-vote majority because McConnell changed the rules in 2018 to remove the filibuster for Supreme Court nominees, ensuring confirmation at that time for Neil Gorsuch.
Democrats changed the rules in 2013, when Reid eliminated the filibuster on lower court and cabinet nominees, which were being systematically blocked by McConnell. Everytime the rules were changed, it took away from the protections of the minority party and made it easier for those in power to avoid compromise. If Democrats win both the White House and the Senate this year, which appears to be possible, more rule changes are likely. And for good reason.
Because of the electoral college, we are likely to end up with a Supreme Court in which five of the nine justices were appointed by a president who lost the popular vote. A court with a solid 6-3 conservative majority for the next two decades would be wildly out of step with the nation as a whole, and would be in danger of losing its legitimacy.
Sen. Chuck Schumer has said that “all options are on the table” if Democrats win, including adding new seats to the court. To do so, they would have to get rid of the filibuster entirely. And that would break the Senate, at least the version that our founders envisioned. No more cooling saucer. It would become the House, but with longer terms. There has always been a random nature to Supreme Court vacancies, just as there is to any lifetime position. To bring some order to the process, justices often step down when their party is in power to ensure a like-minded replacement.
Ginsburg will rightly be remembered as a champion for equality and a pioneer for women of all professions; and she was widely praised for her grit and toughness. But, she was urged to step down when Barack Obama was in power. In declining, she gambled twice - first that Hillary Clinton would win; and second, that she would survive for at least four years if Clinton lost. Only the party in power can stop the constant ratcheting up of partisan advantages. That’s clearly not going to happen in the next few weeks.
If Democrats win, instead of adding seats to the court, they should apply term limits to the position of Supreme Court justice. That would give each president a more equal opportunity to appoint justices, and would make for a more orderly transition. To do so may require Democrats to end the filibuster. Then, after taking that one vote, they should do the unthinkable - give back all of the powers that have been stripped from the minority during the past decade and start working together to find compromise.
Walter Rubel can be reached at firstname.lastname@example.org.
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I fear the unfortunate timing of Justice Ruth Bader Ginsburg’s death may break the U.S. Senate. It is, perhaps, the inevitable culmination of a battle between Mitch McConnell and Harry Reid that started years ago, where every time the majority changed, so did the rules. About the only thing left protecting the minority party is the filibuster rule, and its days may be numbered. With his term as majority leader in danger, McConnell is rushing to get Amy Coney Barrett confirmed to the Supreme Court before the election. To do so, he has changed the rules established four years ago in declining to consider the nomination of Merrick Garland. Back then it was critical that voters had a voice. Now it is critical that they don’t.
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