Supreme Court & Trump: Republicans Should Not Cut a Deal with Democrats

The Supreme Court building in Washington, D.C., July 2, 2020 (Jonathan Ernst/Reuters)

As we wait for Donald Trump to announce his pick to fill the Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg, there has been some division on the right over the most prudent course of action for the GOP to take. Some conservatives, especially on the anti-Trump right, including my good friend and former colleague David French, have suggested that Republicans ought to wait to hold a vote on a nominee until after the election.

As David puts it, if Biden wins, he and the Senate should agree on a deal in which the Republican Senate majority leaves the seat open in exchange for Biden’s promise not to sign legislation expanding the number of seats on the Court. A couple of my colleagues have already offered their two cents on why they think such a deal would be impractical and unwise.

I’ll add mine: Though I have great respect for David and others who favor this proposal, I think the idea fails not only because of its impracticality but also because it asks conservatives to take responsibility for stemming the tide of the Left’s increasing radicalization.

There is nothing imprudent or unprincipled about filling a Supreme Court vacancy in an election year when the same party controls both the White House and the Senate. As Dan McLaughlin has pointed out, there’s nothing unprecedented about it, either. In fact, the opposite is the case: It would be entirely unprecedented for Republicans to fail to fill this seat.

Not to do so out of deference to politicians and activists who are threatening to upend constitutional norms if they don’t get what they want would be to capitulate to political hostage-taking.

“Forcing through a new Supreme Court nominee could produce a Democratic backlash none of us want to see,” says one opinion columnist at Bloomberg.

Maybe so. But doesn’t the responsibility for such a backlash — which plenty of progressives vow will take the form of marching on Washington, blocking the Capitol building, and attempting to obstruct senators as they try to vote on a nominee — rest on the shoulders of the people promising to wreak such havoc?

If Republicans were to cave to Democratic demands simply because many on the Left are threatening to break constitutional norms, they will almost certainly be disappointed by the outcome. Even if the GOP got Democrats to agree to such a deal, why should we expect the very same people making these sorts of threats to be true to their word down the road, especially the next time they hold political power in both the executive and legislative branches?

Conservatives aren’t required by either prudence or principle to set aside their perfectly acceptable political priorities merely because Democrats are unwilling to abide by the normal political process. If anything, it would be imprudent to accede to these demands by cutting a deal.

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