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Should The Next Supreme Court Justice Be Nominated Before The Election?

STEVE INSKEEP, HOST:

We have one perspective this morning on the fight to replace the late Supreme Court justice Ruth Bader Ginsburg. President Trump has talked of nominating someone this week, even as an election looms. Now, in 2016, you'll recall Senate Republican leader Mitch McConnell blocked confirming President Obama's nominee before an election, saying, quote, "The American people should have a voice" - McConnell's words. In 2020, McConnell offers an elaborate rationalization for insisting on the opposite principle.

Adam White is a scholar at the American Enterprise Institute and a professor at George Mason University Law School. He's on Skype and has been warning that McConnell's course courts great danger. Good morning, sir.

ADAM WHITE: Good morning.

INSKEEP: Aren't you somebody who is likely to favor President Trump's nominee, whoever it is?

WHITE: Well, definitely. I think he's done a great job on judges so far.

INSKEEP: And if it's somebody like Amy Coney Barrett, who is one of the possible nominees, you'd be in favor of that?

WHITE: She'd be tremendous. I think she'd be an ideal justice.

INSKEEP: With that said, you're saying that there is a problem here. What is it?

WHITE: Well, I think the problem is one of - it's pretty obvious at this point. Republican senators are going against something that they said very loudly in 2016, namely there should not be a vote during an election year. I understand that the circumstances are different. I understand that they refer to that from time to time. But I think this goes against the clear thrust of what they said last time. They should delay the vote until after the election.

INSKEEP: Let me look at this from a question of raw power, though. What is true in both 2016 and 2020 is that Mitch McConnell, as Senate Republican leader, has the power, assuming he keeps his majority together. He had the power in 2016 to block a nominee he didn't like. Now he has the power to approve one that he likes. Why shouldn't he use the power?

WHITE: Well, he certainly has the power. In fact, in 2004, I wrote a law review article arguing that the Senate does not have to vote on Supreme Court nominations. That's always been true. But I think that in addition to power, senators need to exercise prudence. And at such a precipitous moment in American politics, we should wait until at least after the election to vote or to try to come up with some sort of compromise that handles both the vacancy and the court-packing issue.

INSKEEP: Well, when you talk about needing prudence, talk me through the dangers here. Suppose Republicans disregard the principle they themselves laid down in 2016 and quickly confirm a nominee before the election. What could possibly go wrong after that?

WHITE: Well, to be clear, it could go right. I mean, the public might just support the nomination. I think if they wait until after the election and Trump wins, this all becomes a moot point. If they don't wait, though, and Trump loses, there's going to real - real questions about the circumstances in which the Senate confirmed this nomination. I think that the senators should wait until after the vote to take stock of the situation, and also to take their time in vetting the nominee. This won't take many months, but it will take more than one month, and it ought to be done right. And then they can settle this after the election.

INSKEEP: You raise two interesting points. One is that it's a lifetime appointment and it usually does take a while. It's not usually done in a few weeks. But the other thing that you raise in an article that you've written about this is the possibility of Democratic retaliation, a Democratic response. Haven't some Democrats - not top Democrats, but some Democrats - already begun talking about adding justices to the court if they're able to do so after the election?

WHITE: They have, and I want to be very clear; I think that would be ruinous. I think it would be unjustified. But they are making that threat. And so if we get to a point after the election, if President Trump has lost, I think that moderate senators ought to really consider a way to settle both this vacancy and the court-packing plan, make some sort of deal that avoids the real disaster of court packing.

INSKEEP: Could you describe to me how a deal could possibly take place in this partisan atmosphere?

WHITE: Well, maybe I'm being naive. We've had deals over these sorts of things before. Over a decade ago, the Gang of 14 deal avoided, or ended, the original judicial filibusters of President George W. Bush's nominations. I think that if we get into November and December and we have a vice - we have a President-elect Biden, I think that Republican senators, Democratic senators will need to really think hard, do we want to vote on this nomination and then step forward and also have Democrats vote on court packing, or is there some way that we can reach agreement and avoid what I think would be a catastrophe - a generational catastrophe of a court-packing plan?

INSKEEP: Is there some fundamental change that is needed here, some constitutional or legal change - ending lifetime appointments to the Supreme Court, for example - just doing something so that the stakes don't seem quite so extreme with every single nomination?

WHITE: I think that is increasingly a good idea. I didn't think so before, but now I do. I also think this reflects - this entire controversy reflects the fact that the Supreme Court plays too great a role in our politics and that the justices themselves need to back away from the powers that they've been asserting over the last 40 years.

INSKEEP: Mr. White, thank you very much.

WHITE: Thank you.

INSKEEP: Adam White is a scholar at the American Enterprise Institute and a professor of law at George Mason University Antonin Scalia School of Law. He joined us by Skype. Transcript provided by NPR, Copyright NPR.