Following the death of Supreme Court Justice Ruth Bader Ginsburg this past month, a heavily polarized debate over the outcome of the vacant seat on the Supreme Court has intensified between Republicans and Democrats. 

With Senate Republicans planning on confirming the vote for circuit court judge Amy Coney Barrett before the election, many Democrats have taken extreme measures and threats in an attempt to prevent the vacancy from being filled.

Senate Minority Leader Chuck Schumer (D-NY) said that “nothing is off the table” if Republicans move forward with the confirmation. 

What Schumer is referencing is multiple extreme measures that Democrats could use to seize political power and control if they are successful in winning the presidency and control of the Senate in the upcoming election, now less than six weeks away.

This could include eliminating the Senate filibuster, allowing a simple majority of 51 votes to expand and subsequently pack the supreme court with a new majority of progressive justices who would greenlight Democratic policies.

This plan for packing the court has been openly expressed by many prominent Democrats including Sen. Ed Markey (D-MA), Sen. Maize Hirono (D-HI), and Sen. Elizabeth Warren (D-MA).

In addition, many Democrats have also considered using the abolishment of the filibuster as a means to grant statehood to Puerto Rico and Washington D.C., both of which would very likely send two Democrats to the Senate for decades to come, further increasing the Democrats own power in the Senate. 

Despite the outrage among many of his colleagues, presidential candidate Joe Biden, notably a former Senate Judiciary chairman, has yet to formally comment on any threat of retaliation from the Democrats, repeatedly spinning questions on the subject as if they are Republican talking points, even dodging the question at the presidential debate this past week. 

This outrage coming from Democrats stems largely from the 2016 Republican-controlled Senate’s decision to not give Supreme Court nominee Merrick Garland a confirmation hearing under the guise of not confirming a nomination in an election year.

While Democrats are widely pointing their fingers at Republicans for what they see as hypocrisy regarding the confirmation process, it is important to note that these same Democrats are being just as, if not more hypocritical. 

In 2016, then-Vice President Joe Biden said, “I would go forward with a confirmation process as chairman, even a few months before a presidential election if the nominee were chosen with the advice, and not merely the consent, of the Senate.”

Senate minority leader Chuck Schumer said Senate Republicans should “do your job” and fill the vacant seat. 

While both parties have flipped their position depending on if the situation at hand is advantageous to them. The Republicans have the constitution on their side.

Under article one of the constitution, the Senate has full power of “advice and consent” over the confirmation of Supreme Court nominees. R

Republicans in no way needed to justify not confirming Merrick Garland to the court, it is well within the prerogative and duties of the Senate to confirm justices that they believe will faithfully interrupt the constitution. 

Democrats have made this point clear over the years. In 1992 Joe Biden said that “Once the political season is underway — and it is — action on a Supreme Court nomination must be put off until after the election is over.”

This was when he was serving as Senate Judiciary chairman with a Senate majority in the last year of Republican president George H.W. Bush’s term.

Biden would then flip this position in 2016 when he was in the executive working with a minority in the Senate. Furthermore in 2001 in the first year of George W. Bush’s first term, Bruce Ackerman a prominent Yale law professor expressed that, “when sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush.”

No Democratic representatives or groups expressed opposition to this language, and the Democrat-controlled Senate proceeded to filibuster a number of Bush’s appeals court picks.

In reality, there have been 29 election year SCOTUS vacancies in the history of the country. Of these 19 have occurred when the President’s party held a majority in the Senate, of which 17 of the 19 were confirmed. Of the 10 vacancies where the President’s party did not hold the Senate, only 1 of 10 were confirmed before the election.

Outside of the objective history of the case, many Democrats have used prominent social issues such as abortion and LGBT+ rights to push against a third Trump SCOTUS pick. Prominent social figure and representative from New York Alexandria Ocasio-Cortez (D-NY) went as far as to state that “The actual balance of our democracy rests in the actions that we choose to make.”

While it has long been a Democrat talking point that if Republicans take control over the Supreme Court every aspect of our democracy is at risk, in reality this is far from the truth. As of today, it is only likely that 1 of the current 8 SCOTUS justices would vote to overturn Roe v. Wade being justice Clarence Thomas. The nominee for the current vacancy, circuit court judge Amy Coney Barrett has written in Notre Dame law review that Roe v. Wade should not be overturned under stare decisis.

Even in the very unlikely event that Roe v. Wade is overturned, this would push control over abortion back to the states, where over 2/3rds of states do not impose heavy restrictions on abortion, which would not change in the event Roe is overturned. 

As of now, Senate Republicans are expected to push through the confirmation process throughout October, while Democrats have started to roll out plans to slow the process. Majority leader Schumer has enacted the “two hour-rule” which prevents committees from meeting as a way to slow down progress over the possible confirmation. As a result of this Schumer is also delaying many intelligence briefings for election security that can no longer take place under the rule. 

Meanwhile, in the House of Representatives, Speaker Nancy Pelosi (D-CA) threatened the use of impeachment proceedings as a way to stall the Senate’s ability to confirm a nominee.

While under the constitution the house can impeach for any reason they see fit, not necessarily a high crime or misdemeanor, using the impeachment process as a political tool to stall the Senate would certainly set precedent for using impeachment to stymie your political adversaries. 

The confirmation process has become more complicated as multiple GOP senators have tested positive for COVID-19, likely as a result of the rose garden nomination event for Amy Coney Barrett. This gives Democratic senators the opportunity to stall the nomination process since Republicans can no longer sit a majority in person in the Senate.

While tensions surrounding the Supreme Court vacancy rise, we still await a statement from Joe Biden surrounding the threats many of his democratic colleagues endorse. Whether Biden decides to endorse the prospect of court-packing and eliminating the filibuster or denouncing the plan could very well shape the outcome of both the presidential election and the future of this country. 

Written ByBen Mackillop

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