The U.S. Supreme Court is the bedrock of our system. It exists as an important check on raw political authority — legislative and executive. However, the court is not a political institution. Justices serve for life, and they are largely insulated from the partisan world.
Despite this wise design, politicians in both parties have repeatedly sought to politicize the federal judiciary. These efforts are misguided and should be resisted.
That said, I am not naïve. While the Supreme Court is apolitical, it exists among its co-equal branches of government that are intentionally political.
When the court is required to interact with its sister branches, it is sometimes a bizarre dance. Consider how uncomfortable the justices look at the State of the Union.
Never is this interaction more awkward than when a Supreme Court vacancy arises. Yes, the nomination and confirmation process is rife with political overtones, but it is also a process to be revered and celebrated. Unfortunately, both parties have fumbled this ball.
GOP mishandled Garland nomination
When Justice Antonin Scalia died, the leaders of my party should have been more straightforward with the American people. Yes, President Barack Obama had a right to nominate a justice. However, the Senate was not required to approve his choice.
As House Speaker Nancy Pelosi has reminded us, these are two co-equal branches of government. In 2016, Senate Majority Leader Mitch McConnell (and the country) would have been better served had McConnell simply (and correctly) said: “The president can nominate whoever he wants. We will not be, nor does the Constitution require, that we be a rubber stamp. We will discharge our duty and be equal participants in this process.”
Judge Merrick Garland was entitled to more respect than he received. But he was not entitled to a seat on the Supreme Court simply because there was a vacancy and because he was the president’s choice.
This played out in a political process, exactly as our founders intended. It wasn’t wrong. The people do not elect Supreme Court justices. Republicans were wrong to advance this argument in 2016, and Democrats are equally wrong to make that argument now.
Democrats would act to fill vacancy
If Democrats held the White House and had the majority in the Senate today, I am convinced a new justice would be swiftly nominated and confirmed to fill the Ruth Bader Ginsburg vacancy. I would not fault them for it.
Stripping away the hyperbole, the least political thing we can do is to hold a hearing on Judge Amy Coney Barrett’s nomination and have a floor vote before the election.
On the other hand, the most political options are to leave the seat open pending the outcome of an election or, and this one is arguably the worst, wait and confirm the appointment during a lame duck session after the election. The appointee would be known as the “lame duck justice.” Her legitimacy would forever be called into question. The Supreme Court deserves better. And the American people deserve better.
I am not taking this position for partisan reasons. I’m not a Donald Trump fan, and I abhor his personal conduct. But he is the president, and the Constitution says he “shall nominate” judges and justices to fill vacancies. Like his predecessors, President Trump is obligated to submit a nomination.
The Constitution also gives the Senate the power of advice and consent. Senators have every legal right to withhold their consent as they did in 2016. Logically, they also have the authority to give consent.
It is fair to call Senate Republicans hypocritical for holding a vote on Judge Barrett’s nomination. But both parties have engaged in double speak on judicial appointments.
Remember, it was Democrats in 2016 who said the Senate should discharge its duty, regardless of proximity to a presidential election.
For that matter, Democrats and former Sen. Harry Reid most likely wish they hadn’t chosen to filibuster the Bush judicial nominees or change filibuster rules for Obama appointees. In hindsight, politicians always seem short sighted.
Political arguments of hypocrisy should not carry the day. We should be guided by facts and law. As members of the majority, McConnell and his colleagues have earned the right to make this decision. The voters in 2018 gave them this authority.
Of course, on Nov. 3, the voters could hand Senate control to Democrats. That’s the beauty of elections. They have consequences.
Neither political party has the high road here. But for the good of the country and for the integrity and independence of the Supreme Court, the political gamesmanship must end.
Judge Barrett is an accomplished, well-qualified nominee. It’s the Senate’s call. They should proceed to consider the nomination and hold a floor vote before the election.
Cole Wist, a Colorado Republican, is the former assistant minority leader in the Colorado House of Representatives. Wist works as an employment and labor attorney.
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This article originally appeared on USA TODAY: Why Senate should vote on well-qualified Amy Coney Barrett