Act now to prevent a judicial train wreck

We seem headed to a judicial train wreck. As the Senate Judiciary Committee concludes its work, the full Senate is poised to confirm Judge Amy Coney Barrett to the U.S. Supreme Court. If it does so, and Judge Barrett is appointed to the court, Democrats no doubt will seek retribution and judicial changes that would further politicize our courts. This cycle of politicizing our judiciary has to stop. And it will take four Republican senators to step up and make that happen.

In 2016, this newspaper reported on a lawsuit I filed in D.C. federal district court, Michel v. McConnell et al., which sought to compel the Senate to vote on President Barack Obama’s Supreme Court nomination of Judge Merrick Garland after the death of Justice Antonin Scalia. As we all remember, 11 Republican senators, comprising a majority of the Senate Judiciary Committee, blocked any action or even consideration of the Garland nomination until after the 2016 election — saying voters should decide who appoints the next justice.

In that lawsuit, I argued I was harmed as a voter because my New Mexico senators were denied a say in the required Senate function of advice and consent for the Garland nomination. The district court dismissed my lawsuit, finding the harm I suffered was too generalized to support a claim. That dismissal was upheld on appeal. Unfortunately, that dismissal also meant the issue of whether the Senate must act on duly nominated judges and justices was never resolved. If that issue had been decided, I believe the arguments were compelling that the Senate cannot lawfully ignore a presidential judicial nominee — as has been the recent practice of Senate majorities seeking to fill the federal bench with politically aligned judges.

When the Senate refuses to participate in a judicial nomination, our system of government breaks down. In the case of Judge Garland, the refusal to even consider his nomination compromised all three branches of government: President Obama was denied his appointment power for nearly one-fourth of his term; the Supreme Court lacked a ninth justice to resolve 4-4 deadlocks; and the full Senate was deprived of its role to provide or withhold advice and consent. Moreover, as Justice Scalia wrote in Edmund v. United States, “By requiring the joint participation of the president and the senate, the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one.” That accountability never happened with Judge Garland.

So, where does that leave us? Despite the political posturing, I still believe the Constitution requires full Senate participation in a president’s judicial appointments. That means the Senate’s process of deciding whether to consent to Judge

Barrett’s nomination is being properly, albeit expeditiously, administered.

However, while the process is required, a particular outcome is not. Given the history and unlawful lack of full Senate participation in the Garland nomination, we need to find a way to restore balance and fairness to our judiciary, and particularly to the Supreme Court. The first step is to deny Senate confirmation of Judge Barrett’s appointment — not because she is unqualified or unfit, but because only by doing so can we remedy the harm caused by the Garland debacle and close that unfortunate chapter of our history. Denial of consent would require at least four Senate Republicans (along with Senate Democrats and independents) to put country over party and take the long view toward preserving our democracy.

If President Donald Trump wins the election, he can renominate and presumably appoint Judge Barrett to the court. However, if former Vice President Joe Biden wins, he should appoint Ginsburg’s replacement.

I am not hopeful that four Republican senators will step up to protect our form of government from the otherwise inevitable decline of our judiciary and ultimately our democracy. But if they do, we can then, together, begin the important work of depoliticizing our judiciary for the future.

When the Senate refuses to participate in a judicial nomination, our system of government breaks down.