Sen. Sullivan must stick to his principles

“Alaskans, like all Americans, are in the midst of an important national election. The next Supreme Court justice could fundamentally change the direction of the Court for years to come. Alaskans deserve to have a voice in that direction through their vote.” So said Sen. Dan Sullivan on March 16, 2016, after he refused to meet with Merrick Garland, President Barack Obama’s nominee to fill the Supreme Court vacancy left by open by the late Antonin Scalia.

Sen. Sullivan’s argument in 2016 was essentially this: The Senate can enhance the democratic character of the Supreme Court selection process by refusing to confirm any new justice in an election year. This argument — assuming Sen. Sullivan made it in good faith — is no less true in 2020, when we are little more than a month away from. Thus, Sen. Sullivan should stay true to his word and join Sen. Lisa Murkowski in refusing to fill Justice Ruth Bader Ginsburg’s seat until after Alaskans, and all Americans, decide the next president of the United States. And that president should select the next justice of the Supreme Court.

I suspect, however, that Sen. Sullivan will unabashedly surrender his principles. He will play Mitch McConnell’s cavalier game of constitutional hardball (a topic I’ve written about before) and vote to confirm a new Supreme Court justice before the next president is sworn in and as quickly as McConnell will allow. Alaskans should oppose such brazen hypocrisy. As Sen. Sullivan stressed in 2016, Alaskans deserve a voice in a decision that could fundamentally change the direction of the Court for years to come. Thus, when Sen. Sullivan tries to walk back his 2016 statement — and no doubt, he will — Alaskans should push back and hold him accountable.

Alaskans should call and write to Sen. Sullivan and politely, but firmly, ask him to stand by the position he took in 2016. Any caller, however, should be prepared to hear the same pabulum talking points cooked up in Mitch McConnell’s press room and distributed through Capitol Hill to be parroted by Republican senators, like Sullivan, who are up for re-election this year. There are three arguments that I believe Sullivan is likely to make when pressed on why he’s rushing to fill Justice Ginsburg’s seat. All three of these arguments are unpersuasive. I hope the below deconstruction of Sen. Sullivan’s likely arguments will help Alaskans articulate why Sen. Sullivan needs to keep his word to the Alaskans whom he represents in Washington — regardless of what Mitch McConnell says.

First, Sullivan might argue that we need a full Supreme Court to resolve a contested election. There are three problems with this argument. First, and most obviously, if having nine justices is necessary to resolve a post-election controversy in 2020, then it was also necessary in 2016. Thus, to say we need nine justices in 2020, but not in 2016, rings hollow and is an argument made in bad faith. Second, a 5-4 majority that gives President Donald Trump an electoral victory (with three Trump appointees presumably voting in the majority) would itself foment a constitutional crisis, not solve it. Third, Sen. Sullivan should not be reinforcing the notion that we ought to rely on nine unelected lawyers to decide the next president. I’m sure Sen. Sullivan remembers well the loss of institutional legitimacy the Supreme Court suffered after Bush v. Gore.

Second, Sen. Sullivan is likely to argue that 2020 is different because Republicans control both the White House and the Senate, whereas in 2016, the White House and Senate were divided between the Democrats and Republicans. This argument makes little sense to me. Again, Sen. Sullivan’s argument in 2016 was that the Senate refraining to appoint any new justice in an election year gives Alaskans a louder voice in the Supreme Court selection process. This argument does not at all turn on which party controls the Senate (while also ignoring which party controls the House of Representatives). Relatedly, Sen. Sullivan might argue that because Trump is an incumbent President running against a Democratic challenger — whereas Obama was at the end of his second term in 2016 — Alaskans deserve less of a voice in filling Justice Ginsburg’s seat. This is nonsense. That Alaskans should have a voice to fill a Supreme Court vacancy in an election year is a principle that does not change because of who is on the ballot.

Third, Sen. Sullivan might argue that because Senate Republicans grew their majority after the 2018 election, they have a popular mandate that Democrats lacked in 2016. Not so. Whatever “mandate” Republicans believe they gained in 2018 has surely expired mere weeks away from another election. Additionally, this argument overlooks that nearly 60% of total votes for Senate candidates cast in 2018 went to Democrats, who were defending 24 seats compared to the Republicans' nine seats. Indeed, the Democrats won a greater share of the popular vote in 2018 than the Republicans did when they took the Senate in 2014. This is hardly the kind of overwhelming popular mandate that would justify making a lifetime appointment to the Supreme Court.

Sen. Sullivan spoke in no uncertain terms in 2016: “to withhold advancement of Mr. Garland’s nomination isn’t about the individual, it’s about the principle.” Sen. Sullivan did not argue in 2016 that Merrick Garland was unqualified or that he was a radical liberal. Nor could he. Merrick Garland was, and is, a respected jurist cut from moderate cloth. He is, in the words of Neil Gorsuch, “an outstanding judge.” Sen. Sullivan instead argued that Alaskans deserved a voice in the selection of Justice Scalia’s replacement. If Sen. Sullivan meant what he said in 2016, then he should join Sen. Murkowski in giving Alaskans a voice in the selection of Justice Ginsburg’s replacement.

Brett Frazer is an attorney working for a private firm. He recently co-authored an article in the Alaska Law Review, where he wrote about the history of Alaska’s judiciary. Mr. Frazer is also a 2012 graduate of the University of Alaska Anchorage. During college, Mr. Frazer was awarded the Truman Scholarship and was a member of the Seawolf Debate Program.

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