The 1965 song "England Swings" by the late Roger Williams notes, "England swings like a pendulum do …" The same can be said about the selection process for nominees of the Supreme Court of the United States (SCOTUS). Despite Amy Coney Barrett's (ACB) recent placement on the court, Democrats' lamentations echo in the aftermath of the 2020 presidential election. Even as we await election results, Speaker of the House Nancy Pelosi inexcusably is out and about making a media tour bashing ACB's legitimacy to sit on the highest court in the land. Such egregious conduct drowns out an undeniable reality: The ideological makeup of SCOTUS justice nominees has long been determined by the timing of the political pendulum's swing.
Control of our government by a political party is like a ship at sea, with two different crews onboard in "standby" status. While the ship's course ultimately seeks to reach a utopian state and maintain a stable world, the crew setting that course is determined by a whim – the American electorate. Deciding every four years who will occupy the Oval Office and every six years the Senate, voters either activate a liberal crew of Democrats or conservative crew of Republicans to take the helm. It is that crew which then determines course adjustments the ship takes.
History has demonstrated the electorate's whim swings much like a pendulum, allowing for regular course adjustments when voters perceive the ship has drifted too far left or right. But, so far, this swing has been fairly well balanced. Since World War II's end, we have elected six Republican and six Democratic presidents to office. (While Gerald Ford qualifies as a seventh Republican, he was not elected either as vice president or president.) Additionally, the election of back-to-back administrations of different presidents of the same party has been limited to one each (for Democrats, Lyndon Johnson followed John F. Kennedy; for Republicans, George H.W. Bush followed Ronald Reagan) as well as one-term presidents (Democrat Jimmy Carter and Republican George H.W. Bush). Thus, political parties have enjoyed alternating administrations fairly regularly, resulting in the setting of regular course adjustments depending upon which party's crew had the helm.
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Voters' ability to directly control the ideological makeup of SCOTUS members has been much more uncertain, simply because justices receive lifetime appointments. Obviously, one never knows when one will pass – as with Ruth Bader Ginsburg (RBG) – or voluntarily choose to retire – as with Sandra Day O'Connor. As far as voter impact on SCOTUS vacancies go, timing is everything, turning on two factors: the same party simultaneously controlling both the Oval Office, to select the nominee, and the Senate, to confirm same. That party's ideology will then be reflected by the nominee. But since the SCOTUS vacancy date is unknown, along with which party will then control both factors, the process is much like musical chairs.
Additionally, since World War II, simultaneous control of both factors has occurred occasionally for both parties, although Democrats have enjoyed single-party control of both more often than Republicans. While the makeup of the current SCOTUS, in the aftermath of the swearing in of ACB on Oct. 26, supposedly gives conservatives a 6-3 advantage, that imbalance was created due to vacancies coinciding with Republicans' simultaneous control of the presidency and Senate. Despite the protestations of Democrats claiming ACB's nomination was illegitimate or somehow improper for failing to await the possible installation of a newly elected president, it was not. Rest assured, had Democrats held the same advantage, a new liberal justice would now be seated on the bench.
While some Democratic resentment stems from the fact RBG – considered a champion of liberalism – has been replaced by ACB – perceived to be anathema to it – what is ignored is how RBG, had she desired, could have secured her seat for a liberal replacement. That opportunity came in 2009 after President Barack Obama was elected. Democrats controlled both the Oval Office and the Senate, so Obama knew conditions were ripe, should RBG step down, to allow him to nominate, and a Democrat Senate majority to confirm, a like-minded justice. RBG was 76 years old at the time and fighting cancer. While Obama called RBG in to discuss the matter, she chose not to step down.
Democrats, like Senate Minority Leader Chuck Schumer, seek to obfuscate the selection issue by suggesting when Justice Antonin Scalia died in early 2016, Democrats ended up leaving the seat open until after Trump took office. Schumer conveniently ignores the fact Democrats no longer held a Senate majority and, undoubtedly, were happy to await Hillary Clinton's expected presidential election to nominate a candidate. Ridiculously, Schumer went on to claim, "Generations yet unborn will suffer the consequences of this (ACB's) nomination." Imagine such a brash statement coming from a party representative who supports the killing of millions of those unborn generation members by abortion.
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With ACB's confirmation, different options were voiced by irate liberals who, like Sen. Kamala Harris, sought revenge. These options included, when in a position to do so, Democrats expanding the SCOTUS and packing it with liberals – changing a 151-year tradition of having nine justices only – as well as impeaching conservative justices simply for their commitment to interpret the Constitution as written. The Constitution does not limit the number of SCOTUS justices – a number which has vacillated originally from six to as few as five and as many as 10, before settling on the number of nine in 1869. Should expansion occur, Democrats suggest as possible candidates Obama and Hillary Clinton.
While the rules of the game for nominating and confirming a SCOTUS replacement have long been in play, Democrats – upset that the timing of high-court vacancies most recently worked to benefit Republicans – have threatened to change the rules. This is something even their liberal champion RBG warned against, arguing that court packing would make the Supreme Court "look partisan." And, long before RBG, a Founding Father and our fourth president, James Madison, worried about "an elective despotism" wherein one body of government exercised control over another stating, "the powers of government should be so divided and balanced … as that no one could transcend their legal limits, without being effectually checked and restrained by the other."
As we await the presidential election's outcome, liberals unhappy over ACB's confirmation might use the time to study our history, heeding Madison's warning. They must allow the American electorate's influence to swing "like a pendulum do."