Russ Feingold has thought longer and harder than most Americans about the US Senate’s handling of Supreme Court nominations, and he knows something has got to change. As the former chair of the Senate Judiciary Committee’s subcommittee on the Constitution, and as the current president of the American Constitution Society, he has fought to maintain the deliberative process by which the Senate is supposed to provide advice and consent in a finely balanced system of checks and balances.
But as Republicans coalesce in support of a drive by President Donald Trump and Senate majority leader Mitch McConnell to seat a replacement for the late Justice Ruth Bader Ginsburg before or immediately after the November 3 election, Feingold says, “What’s happening now is a mockery of what everybody believed was the appropriate way to handle those nominations.” Like most progressives, the former senator from Wisconsin supports delaying action to replace Justice Ginsburg until after a president is sworn in on January 20, 2021. If Senate Republicans succeed in “ramming through” a nominee to succeed the justice, as many now fear is likely, Feingold says there will need to be “a very serious and public discussion about the need to take serious measures to provide reparations for what could be the theft of a second Supreme Court seat.” As part of that discussion, the ACS president says, there has to be recognition of “the fact that it is perfectly appropriate for the Congress to determine that there should be more justices on the Court.” Here’s our discussion of Justice Ginsburg’s legacy, the current nomination fight and the future of the high court.
The Supreme Court can’t simply be an attempt to somehow replicate what the founders thought, which of course is not always possible to know, but to appropriately interpret and adapt the Constitution to the reality of the diverse country that we are now. Justice Ginsburg was in many ways one of the most preeminent justices to be able to do that.
JN: That’s something we should be reflecting on. Instead, there is this hyper-political rush by President Trump and Mitch McConnell to replace her.
RF: Well, the problem here is of course intensified by the fact that we’re in a presidential election. But the reality is that the people that are running most of this country, from the executive branch and United States Senate, would have exploited this situation in any event, at any time, as they proved with the theft of President Obama’s seat to nominate Merrick Garland.
What we’ve been subjected to—and this needs to be said as people look at reform measures—is we essentially had a political death watch for Justice Ginsburg across this country for quite a few months. I found it gruesome and terribly unfortunate that a wonderful person like this had to be put through this because people were fearful that the right in this country and those who are willing to exploit the nomination process would use any opportunity to advance their far-right ideological agenda.
This gruesomeness has been taken to a new height. Within minutes, the Senate majority leader is talking about immediately trying to fill this seat—or doing it before the end of the year—with no respect for Justice Ginsburg, no respect for the court, no respect for unity in this country. That’s where we’re at, and it is really a very bad moment for the court itself and for our democracy, and it somehow has to be met with a response.
JN: What should that response be?
RF: We’re going to have to look at some things that in the past many of us have been squeamish about or thought was a bad idea.
I believe you were with me when I had my wonderful opportunity to visit Hyde Park to receive an award from the Roosevelt Foundation. I was of course given the tour of the place the night before the awards by [Nation magazine publisher and editorial director] Katrina vanden Heuvel, and I was asking questions. I made some reference to the court-packing plan, and she said, “Senator, we refer to that here as the court reform plan.” I was very amused by that, but now I realize how important that concept is at this moment.
I don’t think it should be referred to as court packing. I think we should talk about court reform, and I think we need to take a very serious look at the fact that it is perfectly appropriate for the Congress to determine that there should be more justices on the court. I would normally not like that sort of thing being done. But when there is a ruthless willingness to destroy the norms and traditions of judicial appointments in the Senate, it has to be responded to in a way to prevent the locking down of the courts for one ideology the next 40 or 50 years.
So I expect that there will be serious proposals to increase the number of justices and—depending on, of course, the outcome of the election—that could be the kind of response that would be helpful. It may involve as well something that I’ve been squeamish about in the past…and that is it’s possible that there would have to be at least an exception to the filibuster rule put forth in order to make this happen.
But you know, this isn’t just any piece of legislation or any nomination. This is about whether or not the Supreme Court of the United States is to be a legitimate institution. So although the American Constitution Society does not specifically endorse legislation, we will be engaging in a very serious and public discussion about the need to take serious measures to provide reparations for what could be the theft of a second Supreme Court seat.
JN: I know from talking to you about these issues in the past that, for you, it really is a big deal for you to be talking about making an exception to the filibuster and expanding the court.
RF: Yes. I never thought I’d be saying these things, and that’s because I didn’t believe people would be so ruthless in exploiting the rules and traditions [for handing] nominations in the Senate.
What I always like to explain to classes, and people that want to listen, about the filibuster and the holds and the various rules in the Senate is that these are all in place to be used on certain occasions. But when people use certain techniques or rules so extremely and so abusively that it undermines the entire institution, something has to be done about it.
I remember when I was in the Senate and the filibuster really was unusual. For example, somebody would be upset about what was being done to the dairy industry. They’d stand up for their state. Or [onetime Wisconsin Senator] Bill Proxmire would get up to the floor and do a filibuster on the Genocide Treaty. But it wasn’t a standard procedure.
To use and abuse Senate procedures in this way—to manipulate things in a way that you don’t take up nominations of Democratic presidents but you jam through nominations of Republican presidents—is such a serious abuse that it does lead me, personally as well as as the president of the American Constitution Society, to say we have got to do something about this or it really means that you [are going to] allow those to abuse the rules to run the show.
JN: You were talking about things that could happen with a new Senate, with a Senate that quite frankly could be controlled by Democrats. In the immediate moment, Mitch McConnell has said that he intends to have a vote on it before the end of the year. How should we think about that? What are the proper responses, both in the context of the Senate and also politically?
RF: The American Constitution Society, and progressive groups generally, are in strong agreement that we believe it is entirely inappropriate to take up a nomination prior to January 20th, until we know who the president will be at that point. [South Carolina Senator] Lindsey Graham actually said that a year or so ago. Others have said it.
People know that this is a complete violation of fairness to go and try to jam this nomination through. You can look at history in that regard. Or you can just look at common sense—that when you’re in the middle of a presidential election that’s imminent, when the country is in tremendous turmoil with regard to Covid-19, the economy, and racial injustice, putting somebody on the bench for life is not something that has to be rushed and should not be rushed. The only reason it is being done is for purely political reasons, and it flouts the whole idea of the Senate as a deliberative body that would seriously consider a nomination.
I voted for six justices as a senator. For four of them, I was on the Judiciary Committee. It was a very deliberative process, you know? Individually, as members of the Judiciary Committee, we would gradually meet with each of the nominees for an hour; and we would have, as you know, a couple of weeks of hearings, and then it would go out to the floor, and this is after the president usually took a little time and was careful in who they would nominate.
What’s happening now is a mockery of what everybody believed was the appropriate way to handle those nominations—and that is the way they were handled even under Bush. There was not an attempt to immediately jam through those nominations. In fact, in the one case with Harriet Miers, she was nominated and was considered for a while, and then the nomination was actually withdrawn. So there was a deliberative process.
Essentially, what these people are showing is that they could care less about the way in which this country should choose its justices. The Constitution provides that the Senate should advise and consent, not simply jam something through.
JN: Obviously, you were an elected official for a long time. You ran in many elections. How does what just happened affect the 2020 election? People already said it was the most important election of our lives in many cases. This obviously ups the ante as regards the election itself.
RF: Well, of course it does, but you know, this was true in 2016. One of the concerns that we have at the American Constitution Society is making it possible for people across the country to really realize the stakes that are involved when you choose a president or a Senate, and that this kind of thing, this issue of who is on the Supreme Court, is easily one of the most important things an election’s about.
Frankly, conservatives have been far more effective at convincing their supporters that that’s the case. We have to do a better job of making this clear. If the loss of Justice Ginsburg doesn’t make it clear to people, I don’t know what will.