by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Following the death of Justice Ruth Bader Ginsburg, a handful of writers proposed a grand bargain on the Supreme Court.
The deal would look something like this: In the Senate, which Republicans control 53-47, at least four GOP senators would refuse to confirm a new Supreme Court justice before the election, and if Joe Biden wins on November 3 they’d hold the seat open so Biden could fill it after his inauguration in January. In exchange, Senate Democrats and Biden agree not to pack the Supreme Court if they take power. …
… So, if Republicans give up now on filling Ginsburg’s seat with a justice who would faithfully interpret the Constitution, they get a temporary promise from Democrats not to pack the Court?
How is a deal — a hypothetical deal that Democrats aren’t actually offering right now — tempting if the threat of court-packing isn’t permanently removed?
The threat of court-packing carries its own enormous risks for Democrats, of course. As Joe Biden has acknowledged, it guarantees that Republicans would respond in kind when they take back power. That would guarantee Roe v. Wade would be overturned. Filling the current vacancy merely presents the possibility that Roe might be pared back or overturned. …
… The primary reason progressives are apoplectic is not inconsistent interpretations of the “Biden rule” or the “McConnell rule” on confirming justices in a presidential-election year. Whether it’s the 2018 Brett Kavanaugh hearings, the 1991 Clarence Thomas hearings, or the 1987 character assassination of Robert Bork — all ferocious fights that did not occur in presidential-election years — the true source of enmity is Democratic fear that Roe might be substantially pared back. And that makes perfect sense. The 1973 case establishing a nearly unlimited right to abortion in all 50 states was “an exercise in raw judicial power,” as Justice Byron White wrote in a dissent.