Confirming Justice—Or Injustice?

A Guide to Judging RBG's Successor

Alan Dershowitz

• Publisher: Hot Books
• Year: 2020
• ISBN:
  9781510765689
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

In Confirming Justice—Or Injustice?, Alan Dershowitz— New York Times bestselling author and one of America's most respected legal scholars—contemplates the past, present, and future of the Supreme Court, from the death of Ruth Bader Ginsburg to the confirmation battle looming over President Trump's nomination of Judge Amy Coney Barrett. Alan Dershowitz has been called "one of the most prominent and consistent defenders of civil liberties in America" by Politico and "the nation's most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights" by Newsweek. He is also a fair-minded and even-handed expert on the Constitution and American government, and in this book offers his knowledge and insight to help readers understand the current circumstances surrounding the Supreme Court and the looming partisan battle for its future. Confirming Justice—Or Injustice? is an analysis of every aspect of the possible confirmation of Judge Amy Coney Barrett to fill the vacant seat left by the death of Ruth Bader Ginsburg. It includes timely commentary on the history and process of confirming justices to the Supreme Court, notes about what might happen if the process is changed—such as by court packing or instituting age or term limits for justices—and discussion of the roles of the various people and groups who might have input on the confirmation, from the president to the senate to the judiciary committee to the Constitution itself. In the end, Confirming Justice—Or Injustice? represents an icon in American law and politics reckoning with an increasingly politicized and polarized nomination-and-confirmation process for judges and what those shifts might mean for the country, both now and in days to come. It is essential reading for anyone interested in or concerned about Trump's nomination of Amy Coney Barrett and the process of her possible confirmation, the legacy of Ruth Bader Ginsburg, and the future and fate of the Supreme Court—and American democracy itself.

Chapter 1

The Role of the President in Nominating a Justice: Does President Trump Have the Power to Nominate RBG’s Replacement?

The unexpected death of Justice Ruth Bader Ginsburg set off a great debate that could affect the future of not only the Supreme Court but of the nation as a whole. Should the President have nominated a justice to replace Justice Ruth Bader Ginsburg just six weeks before the presidential election? Now that he has, should the Senate act on the nomination? Or should it refuse to, as it did when President Obama nominated Merrick Garland eight months before the election?

In considering these issues, it is crucial to distinguish between the constitutional powers of the president and senate on the one hand, and political considerations on the other hand. As my colleague, Professor Laurence Tribe, put it: “I’m not suggesting its unconstitutional to go ahead, it’s perfectly constitutional. But a lot of things that are constitutional are stupid.”

So let’s analyze both the constitutionality and wisdom—or lack thereof—of the current rush to nominate and confirm Judge Barrett. We begin with the constitutional powers. There is absolutely no doubt that the Constitution permits a president to nominate justices until the last hours of his term in office. If an outgoing president were to nominate a justice on the morning of January 20th, just hours before his term was over, that nomination would be constitutionally valid. We know that not only from the text of the constitution, but from precedent. President John Adams nominated John Marshall to be Chief Justice just before he turned the office over to Thomas Jefferson. President Herbert Hoover nominated Benjamin Cardozo just weeks before he turned the presidency over to Franklin Delano Roosevelt. President Jimmy Carter nominated Stephen Breyer to the Court of Appeals after he was defeated for reelection by Ronald Reagan. In these and other cases, the senate confirmed the nominations, and the nominees went on to serve long and distinguished terms. There are other instances as well of nominations in the shadow of an election. 

So the constitutional and legal powers of the president and senate are clear beyond dispute. But just because the president and senate have this power does not necessarily mean they should exercise it. Persuasive arguments have been made on both sides of this issue. When President Obama nominated Merrick Garland, Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Lindsey Graham, along with other Republican senators, insisted that it was wrong for a president to nominate and for the Senate to confirm a Supreme Court nominee during a presidential election year. But now that the shoe is in the other foot, McConnell and other Republican senators, including Graham, have made arguments seeking to distinguish President Obama’s nomination of Garland from President Trump’s nomination of Judge Amy Coney Barrett. They argue that the situation is different when the president and the senate are from the same party, as they are now, than when the president is from one party and the senate is controlled by the other party, as was the case with Obama’s nomination of Garland. This is a political issue that the voters will have to assess in the coming election, in which both McConnell and Graham are in close races. Voters will have to decide whether these senators have violated principles that they themselves articulated when it benefited their party. For many senators on both sides of the aisle, partisanship will prevail over principle, as it generally does when the political stakes are high.

It is not only Republican senators who have changed views they expressed in 2016: Democratic senators have done so as well, including Senate Minority Leader Chuck Schumer. Even presidential candidate Joe Biden has flip-flopped on this issue: back in 1992, he opposed President George H.W. Bush nominating a justice before the election, but then in 2016, he supported President Obama nominating Merrick Garland, and now is opposed to President Trump nominating a replacement for Justice Ginsburg.

One argument that is being made today by Republican Senators, and was made by Democrats back in 2016, is that it is dangerous to have eight justices on the Supreme Court without a ninth justice to break ties. When that argument was offered by Democrats in 2016, Republicans responded by arguing that a Supreme Court with eight justices can operate effectively, since relatively few decisions are decided on 5-4 votes. Today, some Republicans are arguing that it is especially important that a ninth justice be appointed because of the likelihood that the 2020 presidential election may well end up in the Supreme Court, as did the 2000 election. In Bush v. Gore, the Supreme Court decided by a 5-4 majority along strictly party lines to stop the Florida recount, which effectively gave the election to the Republican candidate George W. Bush.

So the question arises: What would be worse for America—a 4-4 tie in the Supreme Court which let the lower court ruling stand; or a 5-4 decision in which the deciding vote was cast by a justice nominated on the eve of the election by a president who is a litigant in the case before the justices?

There is, of course, a third alternative. Chief Justice John Roberts is a master at avoiding Supreme Court decisions that appear to be partisan in nature. He is determined to keep the high court above politics. And he has the skills to persuade justices to do what is best for the Supreme Court as an institution. Whether he will be able to do this in the current highly divisive political climate is uncertain.

Already two Republican senators have said they will not vote to confirm a justice nominated on the eve of the election. Two more defectors would be necessary to stop the confirmation. Whether any other Republican senators will join the two may well depend on how the nominee does at the hearings.

Chapter 2

The Role of the Senate: Placing Principle above Partisanship in Replacing Justice Ginsburg

When I presented the constitutional arguments on the Senate floor against the impeachment and removal of President Trump, several Republican senators praised me for placing principle over partisanship. I am a liberal democrat who voted for Hilary Clinton, but I strongly believed that the Constitutional criteria for impeaching President Trump had not been satisfied by the House of Representatives. So, placing Constitutional principles above party loyalty, I incurred the wrath of many Democrats and friends by opposing the impeachment and removal of President Trump.

Now I urge the Republican Senators who praised me for placing principle above partisanship to do the same when it comes to replacing the late, great Justice Ruth Bader Ginsburg. Although the Constitution is silent on the timing of nominating and confirming a justice on the eve of a presidential election, Republican senators were anything but silent when former President Barack Obama nominated the highly qualified Judge Merritt Garland eight months before the 2016 presidential election. They insisted that no Supreme Court nomination be confirmed during a presidential election year.

These and other senators are now demanding the hasty nomination and confirmation process on the eve of the 2020 presidential election. In doing so, they are placing partisanship above principles—their own stated principles. This is not to say that some Democratic senators would not do the same thing if the shoe were on the other foot. During the Garland confirmation process, numerous Democratic senators insisted that it was entirely proper to confirm the nomination of a justice more than two-thirds of a year before a presidential election. They will surely argue that there is a difference, if only in degree, based on proximity to the election. Joe Biden has also flip-flopped on this issue, as have many partisan “experts,” commentators, and ordinary citizens.

But just as two wrongs do not make a right, hypocrisy on both sides of the aisle does not make it principled.

The principle—articulated by both parties when it served their interests—is to defer the nomination of a potential swing justice until the president—whether newly elected or reelected—is sworn in on January 20, 2021. This allows voters to decide which candidate they trust more to make this important nomination. Though, in theory, nominations to the Supreme Court should never be partisan, the reality is that presidents campaign on the promise to nominate justices who promote their agenda. Indeed, President Trump has a published list of conservative judges, lawyers, and politicians from which he will select his nominee. He has placed that issue before the voting public, and the voters should have an opportunity to decide whether he or his opponent—who has pledged to nominate a Black woman—should be entrusted with the important decision of who to nominate to the highest court at a time of considerable division among the justices.

Moreover, if Republican Senators act against the principles they articulated during the Garland confirmation, they risk further politicizing the Supreme Court in the event of a Democratic victory this November.

Those who are pushing to seat a new justice before the election point to the possibility of a 4–4 tie vote if he results of the election were to be challenged in the Highest Court, as they were in 2000. Those on the other side argue that a 5–4 vote decided by last minute pre-election nominee would be even worse than a tie vote. Neither would be good for credibility of the Supreme Court. Nor are the threats by some Democrats, who are promising to expand the number of Supreme Court justices if the Democrats were to win the presidency and the senate. President Franklin Delano Roosevelt tried that back in the 1930s when the Supreme Court undercut his New Deal, but public opinion strongly opposed such overt politicization of the high court and led the president to withdraw his ill-advised plan. Playing politics with the Supreme Court—whether by rushing a nomination through on the eve of the election or expanding the number of justices—would damage the integrity of the high court at a time when it is most needed.

The future of the Supreme Court may be at stake, and senators have a critical role to play in assuring that the process of selecting a justice is determined by enduring principles rather than immediate partisan advantage.

Chapter 3

The Role of the Sitting Justice: Should Ginsburg Have Retired While Barack Obama was Pres...

Table of contents

• TItle Page
• Copyright
• Contents
• Introduction
• Chapter 1: The Role of the President in Nominating a Justice: Does President Trump Have the Power to Nominate RBG’s Replacement?
• Chapter 2: The Role of the Senate: Placing Principle above Partisanship in Replacing Justice Ginsburg
• Chapter 3: The Role of the Sitting Justice: Should Ginsburg Have Retired While Barack Obama was President?
• Chapter 4: The Role of the Vice President: Can He Cast the Deciding Vote On Whether the Senate Consents to a Supreme Court Nominee?
• Chapter 5: The Role of the Constitution: What If Justice Ginsburg Were In a Coma?
• Chapter 6: The Role of the Judiciary Committee: What Questions May Senators Properly Ask Judge Barrett About Her Catholic Faith?
• Chapter 7: The Role of Law Enforcement: Are We Prepared for Post-Election Violence?
• Appendix 1: DON’T PICK JUDGES THE WAY WE DO!
• Appendix 2: The Recusal Statute
• Acknowledgments