Unconstitutional: Democrats should not attempt to repeat the Senate's actions of 2016

For the sake of our democracy, we must let the Supreme Court vacancy nomination proceed. The death of late Justice Antonin Scalia in February 2016, just nine months before the 2016 Presidential Election, set into motion a precedent breaking year-long brawl in Congress over whether it is proper to appoint a new justice to the Court in an election year. Four years later, the late Justice Ruth Bader Ginsberg's death is evoking calls for the same break in the process. The Constitution says that it is the Senate's job to confirm the Presidential nominee for the Supreme Court; it doesn't say how or when, nor offer guidelines for exceptions close to political elections, so we must adhere to our founding document and let the process progress. 

The blocking of a replacement for late Justice Scalia in 2016 exacerbated a deep and troubling constitutional crisis by further politicizing an already embattled Court. That blocking was unconstitutional and never should have happened. And though the Senate's current actions are indisputably hypocritical, further political blocking is not the answer. The outsized focus and pressure we continue to place on what should be a straightforward, apolitical process (the nomination and confirmation of a replacement Justice) are threatening both the integrity of our Constitution and to distract from the most critical issue regular Americans can actually influence between now and November 4th: voting.

The Supreme Court is not ideological: moving forward with the Constitutional process maintains that separation.

The Supreme Court is one coequal branch of the United States Government. Two others, the executive and legislative branches, hold equal power to the Court. Unlike Congresspeople or the President, the judicial branch members are not politicians, and their responsibilities fall outside the two-party system's ideological lines.

American's view of the Court changed in 2016 when Senator Mitch McConnell (R-KY) insisted that President Obama not pick late Justice Scalia's replacement. Instead, Senator McConnell demanded that voters, whose fickle ideology ebbs and flows based on sensationalism and media coverage, should choose the President who would then select the new Supreme Court nominee. 

If Senator McConnell quarreled with the nomination of Merrick Garland due to Garland's conduct or performance as a judge or if he agreed to hold a vote on Garland's nomination while rallying votes against confirming him, the process could have been protected. By refusing to vote on the nominee for ideological, not professional, reasons, Senator McConnell flouted his constitutional duty. It is not the voters' responsibility to pick the nominee, it is the President's responsibility, and in February 2016, that president was Barack Obama. 

Regardless of the Court's current ideological makeup, irrespective of Senator McConnell's dereliction of his constitutional duty in 2016, calling for another unconstitutional action will not bestow some healing magic for the United States. Norm breaking as a reaction to norm-breaking only further delegitimizes the system, which we cannot afford to do.

Vote in 2020: the Supreme Court isn't the only branch that can protect constitutional rights.

Some who are calling for a delay in the nomination of a new justice highlight the human rights that may be eroded if the Court becomes an ideological mouthpiece rather than an independent branch of government. This assertion misses the fact that the Court is not and should not be the principle lawmaker in the United States' system, Congress is. 

The Supreme Court's role in our system is of arbiter. Their decisions are law, but they evaluate legislation and how it is applied in the broadest applicable context. Despite the Roe v. Wade decision declaring abortion constitutionally protected, some states have subverted abortion protections to the point of practical inaccessibility. Whatever you feel about abortion, in the absence of federal or constitutional guidelines, this is a normal and healthy legal and political process; if we don't like it, we must demand changes to federal law, not seek refuge in the courts. The Court should be coequal to legislators, and their outsized weight only continues to be valid if legislators continue to abdicate their role in writing laws. 

What legitimacy does the Left have to oppose extensive norm-breaking by the current administration if they call to mirror Senator McConnell's unconstitutional actions from 2016?

Rather than devoting political energy to yet more unconstitutional precedents, we cannot let anything distract us from the ultimate goal: a blue wave so powerful that it sweeps all branches of government. Divided efforts trying to stop the Supreme Court nomination, and the sensationalism in the media that will follow, only misdirects attention from voting. 

How to move forward

Most Americans can agree that the country needs to change, but no one can agree on the direction of change. Even Vice President Joe Biden has indicated that he will not attempt to expand the Supreme Court if he gets elected because that creates a new precedent for any President to expand a Court bench that doesn't match her ideology.

In a divided country, where some wish to see radical progressive change and others want to maintain the status quo, transformation can seem intractable. It is particularly intractable when there is a fear of cascading precedent breaking (continuous expansion of the Supreme Court) or fears that if a change is made for the worse, it will never be fixed. The first step toward moving past the division is respecting the constitutional processes and allow the nomination to move forward. The second step is to vote. 

The third step is to, as a nation, consider the entire evolution of the court. The United States was not designed to rest the entire democracy's ideals on one of three coequal branches. Unfortunately, in a world vastly different and more complex than the one that originated the Court's mandate, that has often become its role. 

Changing a venerable and necessary branch of Democracy is not something to be done without a clear strategy. If reforms are to be considered, they must be iterative, transcend ideology, and use country-wide demographic data and information on the modern function of the court. Does the census provide additional data to indicate that the court needs to be more demographically inclusive? Life expectancies in 1789, when the court was founded, were 39-years-old. Should lifetime appointments be reconsidered now that judges live and work well past 80? How many cases does the Federal Court Circuit send to the Supreme Court? Is greater capacity needed? If the answer to these questions indicates a need to change the Supreme Court's makeup, any changes should be incrementally applied and tested, with room to adapt and respond to feedback.

Whatever happens with the court in the next few weeks, the real battle for our democracy and human rights is at the polls in November. If we want to protect the voiceless and match our peer nations' human rights protections, it happens at the ballot box, not in a Supreme Court nomination.