The death of Justice Ruth Bader Ginsburg occurs when our country was already at a crossroad.  By historical accident, there has been a “Republican” majority on the court since 1972.    For the past thirty years, there has been a movement among conservative interest groups and supportive lawyers to rewrite the Constitution to undermine the protection given to constitutional rights during the Warren Court and to undermine the legal consensus that arose from the New Deal era.

The Constitution says very little about the structure of the judiciary.  It says that there will be a  Supreme Court with some cases on which the Supreme Court has original jurisdiction.  For the most part, however, the Constitution left it to Congress to fill in the details.  And, while the justices are appointed by the President with the “advice and consent” of the Senate, the Constitution is silent on the details of the confirmation process.

The latter issue is currently front and center.  When there was a vacancy in February 2016, Moscow Mitch cited a non-existent Biden rule as barring any confirmation hearing in a presidential election year.  This year, Moscow Mitch has put forth a modified version of the rule holding that confirmation hearings are only barred if the Senate is controlled by the opposing party.  Of course, that is not a principled rule.  It is a rule about power.  Namely, that the Senate majority gets to do what it wants regardless of what is in the best interest of the American people.

And history offers very little in the way of examples for what the Senate should do.  As a general rule, there have been no justices nominated and confirmed between mid-August of an election year and an election.  However, several justices have been confirmed after the election during a lame duck presidency including Chief Justice John Marshall.  These lame duck confirmations all occurred when the Congressional and Presidential terms ended in early March with a four month lame duck session, giving plenty of time to process a nomination.  For “lame duck” nominations, the record is six who were confirmed and eight who were not confirmed.  Since the start of the new terms were moved from March to January, there have only been four justices nominated during an election year.  The only one of those four who was confirmed was nominated in January of the election year.  Overall, there have justices eighteen nominated between January of an election year and election day.  Of these, ten have been confirmed with the latest successful nomination taking place on July 19.

With history giving little in terms of precedents, it will be up to the individual Senators to determine whether they are more concerned with power or principle.  If principle matters, than it is simply inconceivable that a Trump nominee should receive a hearing much less confirmation unless he is reelected.

Right now it appears likely that Trump will nominate somebody.  The question is when.  And, while Trump has a problem in postponing gratification, the real issue is whether to name somebody this week before the first Presidential debate or wait until after the debate.  At the present time, it appears that he will name somebody on Friday or Saturday.  To be blunt, naming her replacement as soon as her body has been removed from the capitol is very disrespectful, but Trump appears to believe that is a sufficient delay to meet his definition of decorum.   Someone with more strategic sense would probably wait until close to the election (after the third debate), but Trump tends to not be able to postpone gratification.

If Trump does nominate somebody, it is likely that Senator Jellyfish from South Carolina will not postpone the hearings until after the election.  However, it will be very difficult to schedule the hearings before the Vice-Presidential debate on October 7.  If the hearings take place after October 7, the Democrats might want to yield their time to Senator Kamala Harris.  It would be a great opportunity to put our VP candidate at the center of the debate.  And, if as is likely, Trump nominates a far right white woman to replace Justice Ginsburg, having a woman of color handling the questioning from the Democratic side would avoid any appearance that Democratic men are picking on the nominee.

It is unclear if there is enough time to have a vote before the election without keeping the Senate in session until the very eve of the election.  That means that Republicans who are in trouble would have to stay in D.C.  On the other hand, at the present time, only two Republican senators are opposed to a pre-election vote.  In announcing his support for an early vote, Senator Mitt Romney (one of the few hopes to block the vote) made the ludicrous claim that we have a liberal Supreme Court and that, since the majority of the U.S. is center-right, we deserve to have a center-right court.   At the very least, the current Supreme Court is center-right and recent election results would tend to indicate that the majority of the country is center-left.

The bigger question is what happens if the Republicans do place a far right justice on the Supreme Court and the Democrats are in charge after January 20.  While we have gotten used to a nine justice court, that number is mostly a historical accident.  Between 1789 and 1869, the number of justices on the Supreme Court fluctuated.    Originally, one of the duties of the Supreme Court justices was to “ride the circuit,” essentially sharing trial court duties with the judges for each of the districts within the circuit.  Originally, there were three circuits and two justices per circuit for a total of  six justices.  Then,  as the country added states, the circuits were reorganized into six circuits with one justice per circuit.  By 1863, we were up to ten circuits and ten justices.  However, after Andrew Johnson succeeded to the presidency, Congress temporarily reduced the size of the Supreme Court to seven justices and reduced the number of circuits to nine.  (Of course, the ten then-serving would continue to hold their seats, but — if any died or resigned — their seat would not be filled until the Supreme Court was under seven members.  After the election of 1868, Congress restored the court to nine members and it has stayed that size ever since.  At the same time, the number of circuit courts was set at nine as well.  Later, in 1891, the duty of Supreme Court justices to ride circuits were abolished and circuit judges were appointed for the circuits.  In 1911, the circuit courts stopped function as trial courts and became appellate courts.

While Supreme Court justices no longer “ride the circuit,” they still have some functions as circuit justices.  Each justice has one (or two circuits) to which they are assigned.  If a party is seeking emergency review of a lower court ruling (i.e. seeking a stay of that ruling or to lift a stay of a ruling), that application goes to the circuit justice who has the option of deciding the application himself or referring it to the rest of the court.  A key part of the above sentence for the next Congress is the one or two circuits.  In 1869, there were nine circuits.  Congress added a tenth circuit in 1929, another circuit (the D.C. Circuit) in 1948, and two more circuits (the 11th Circuit and the Federal Circuit) in the early 80s.  Up until the addition of the 10th Circuit in 1929, there was a match of one justice per circuit, and no justice had to handle two circuits.

In other words, for at least 100 years (1789-1891) or for 140 years (1789-1929), the number of Supreme Court justices was tied to the number of Circuit Courts.  It is only in the last 90 years that the numbers have diverged.  As such, historically, there is a legitimate argument for increasing the Supreme Court to thirteen justices.  And adding four justices would offset the Republican power play to steal two justices.  (Of course, getting a new judiciary act through would require abolishing the filibuster and having the Democratic caucus stick together as we are unlikely to have any significant number of votes to spare to get to fifty.)

Abolishing the filibuster and expanding the Supreme Court is the nuclear option.  But if the Republican majority over the next three months makes it clear that they view the Supreme Court as just another political institution, Democrats can’t simply surrender control of our lives over to unelected Republicans who happen to be wearing black robes.   At the end of the day, I don’t think most judges or justices make decisions based on political party.  But there is just enough ambiguity in the law that judges and justices tend to break ties in favor of their personal policy preferences.  And, those policy preferences tend to fit into the current divisions between the political parties.   If the Republicans get to fill the Ginsburg vacancy, that will extend their current majority for approximately one or two presidential terms (probably to around 2036).  And if Justices Thomas and Alito and Chief Justice Roberts decide to retire the next time that we have a Republican President and a Republican Senate (say after the 2032 election), we could have conservative control of the court for the next thirty to forty years.  While the Supreme Court has a duty to protect minority rights, it also has a duty to allow the majority to govern.  And a conservative dominated Supreme Court is not likely to let the majority govern.

It seems that we have reached a crisis point for this country.  We have reached a similar point twice before.  After the Civil War, as noted above, the Republicans packed the Supreme Court by subtraction to keep the Supreme Court from blocking Reconstruction.  During the New Deal, Democrats raised the possibility of packing the Supreme Court, and the Supreme Court ultimately backed down.  This election is now even more important.  If the Republicans win, the Supreme Court will become hostile to civil liberties and protective of fundamentalist religious groups at the expense of the rest of us.  If the Democrats win, we may have a chance to fix the Supreme Court but at great cost to the authority of the Supreme Court.  These are dark days ahead, and we can only hope that some Republican Senators may see the light after the election is over and do the right thing.