Viewpoint: Rush to Fill Supreme Court Vacancy Is an Attack on Democracy

President Donald Trump’s and Senate Majority Leader Mitch McConnell’s power grab to fill Justice Ginsburg’s seat on the U.S. Supreme Court before election results are rendered is an abuse of power that will only be made worse if Trump’s nominee isn’t rigorously vetted. 

If seated on the Court, Judge Amy Coney Barrett will play a deciding role in whether critical cases issued over the last half-century remain good law, and how the next half-century of constitutional law will develop. That fact alone merits a close examination of her judicial record, but coupled with the significant ethical failures of the president and his previous nominees—both Cabinet and judicial appointments—the need for a robust confirmation process that McConnell has pledged to avoid is even more acute.

Senate Republicans have justified their blind pledge for a speedy confirmation with the misleading argument that Justice Ginsburg’s own confirmation process lasted 42 days. A key difference, of course, is that Americans were not already voting to potentially replace the president and majority leader. Ginsburg was confirmed in Bill Clinton’s first year as president, and on her merits, not in a process expedited for partisan reasons. McConnell’s case for moving forward with this nominee is also inconsistent with his justification for not considering the nomination of Judge Merrick Garland, President Obama’s choice to replace Justice Antonin Scalia on the Court when the latter passed away nearly nine months before the 2016 election.

Even discounting McConnell’s partisan hypocrisy, President Trump’s disturbing pattern of selecting ethically dubious individuals to government posts should give Americans pause about senators pushing through a new justice as ballots are cast. The most well-known examples are former Trump White House staffers Michael Flynn and Steve Bannon, convicted and accused, respectively, of serious crimes. But there are also many critical Senate-confirmed posts that Trump could not fill because his nominees faced significant ethical questions. In January 2017, the Senate postponed a confirmation hearing for Trump’s Secretary of Labor pick, Andrew Pudzer, as he struggled to address potential conflicts of interest. Pudzer withdrew from the process amidst multiple scandals, including his ex-wife accusing him of domestic abuse. Trump’s nominee to serve as the second-ranking official at the Federal Emergency Management Agency withdrew his nomination in the middle of hurricane and wildfire season after confirmed reports that he falsified government records during the Bush administration. More recently, Trump’s nominee to head the National Oceanographic and Atmospheric Administration, Barry Myers, withdrew after his nomination stalled due to conflict concerns about his family’s stake in AccuWeather, a private weather forecasting company.

President Trump’s track record of confirmation failures amidst ethics questions also extends to judicial nominations. In September 2017, Trump nominated Brett Talley for a federal district court judgeship. Talley’s nomination was heavily scrutinized due to his dearth of experience, partisan writings, and lack of candor regarding a potential conflict with the Trump administration—he was married to a senior official within Trump’s Office of White House Counsel. Talley later withdrew from the process. In 2018, Trump nominated John O'Connor for a federal district court judgeship in Oklahoma. The American Bar Association unanimously rated O’Connor as “unqualified” based in part on concerns that he engaged in “ethically dubious” conduct including “charging clients unusually high fees” and “allegedly scheming to increase his own profits.” O’Connor withdrew from consideration almost a year after his nomination.

Although Judge Barrett was confirmed by the Senate in 2017 to serve on the Seventh Circuit Court of Appeals, prior confirmation is no guarantee that new ethics issues won’t arise. Several of Trump’s most high profile appointees provide cautionary tales. Interior Secretary Ryan Zinke, who was confirmed by a bipartisan majority in 2017, amassed 18 investigations into his behavior including allegations of lavish spending and travel as well as whistleblower retaliation before being forced to resign. William Barr was confirmed not once, but twice to lead the Department of Justice, but during his tenure as Trump’s Attorney General, Barr has consistently abused his office by intervening in criminal and civil cases to protect the President and his allies. Most notably, the vetting of D.C. Circuit Judge Brett Kavanaugh to join the Supreme Court included concerns about irregularities in his financial disclosures and was significantly delayed as the FBI examined allegations of sexual misconduct against the judge. A panel of judges eventually dismissed dozens of ethics complaints against Kavanaugh, concluding that although the complaints were “serious,” there was no legal authority for them to investigate him once McConnell’s Senate confirmed him to the high court. 

President Trump’s and Leader McConnell’s attempt to replace Justice Ginsburg while Americans are voting to potentially replace them both is an indefensible attack on our democracy. Certainly the American public and their senators should question why Judge Barrett accepted the nomination under the current circumstances, as doing so could taint the reputation of the Court going forward. She should also explain how that squares with her own comments regarding filling Justice Scalia’s seat during an election year and whether she will recuse herself from any cases involving the 2020 presidential election. 

Even if these were normal times, Trump’s track record of nominating ethically challenged individuals to high government posts warns against the rubber stamp confirmation that McConnell has promised.

Donald K. Sherman is deputy director of the nonprofit Citizens for Responsibility and Ethics in Washington.