Those are my principles, and if you don’t like them, I have others.
Senator Mitch McConnell, seeking a new fig leaf to disguise the squalid spectacle of hypocrisy that Republicans are presenting regarding the Advice and Consent Clause, is sputtering that there really is a principle involved and there is no inconsistency. In order to reach that conclusion, you must contort yourself into a pretzel, so limber up.
McConnell argues that people misconstrue the principles he enunciated in 2016. It wasn’t that a Supreme Court vacancy should not be filled in the final year of a president’s term. No, as he explained in 2019 when asked what he would do in the event of a 2020 vacancy, “I’d also remind everybody . . . [that] the Senate is of the same party as the president of the United States. And in that situation we would confirm.”
The McConnell of 2019 should talk to the McConnell of 2016. Justice Antonin Scalia died on February 13, 2016. Here’s what McConnell and Chuck Grassley wrote five days later: “Rarely does a Supreme Court vacancy occur in the final year of a presidential term, and the Senate has not confirmed a nominee to fill a vacancy arising in such circumstances for the better part of a century.” Nothing there about the Senate and the presidency being held by different parties. McConnell waxed eloquent about the need for the voice of the American people to be heard in the process. “How often does someone from Ashland, Ky., or Zearing, Iowa, get to have such impact?”
It was for the people! Speaking from the well of the Senate a month later, McConnell insisted, disingenuously, that he was only following the “Biden rule,” because as chairman of the Judiciary Committee, Biden had said in 1992 that a Supreme Court nominee shouldn’t be confirmed in an election year. So you see, McConnell concluded triumphantly, “The American people have a voice in this momentous decision.” On March 20, 2016, appearing on Fox News Sunday, McConnell reiterated the rule he was applying: “We think the important principle in the middle of this presidential year is that the American people need to weigh in and decide who’s going to make this decision.”
Let’s see if we’ve got this: The 2016 principle was that the people should decide. In 2020, McConnell pivoted to (I paraphrase) Oh, well, only when the presidency and Senate are held by different parties. McConnell added that “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.”
But why does the party composition of the Senate matter, as a principle? McConnell seems to be saying that because Republicans gained Senate seats in 2018, the people have given them a popular mandate to do the president’s bidding.
Is that the new principle? Because if so, it’s a flimsy one.
It’s true that the Republicans gained two Senate seats in 2018, but it’s also true that they lost one in 2017, in Alabama. Are they basing their mandate on a net gain of one? That’s the vox populi? The map was very favorable to Republicans in 2018, with Democrats defending 10 seats from states Trump had won. Further, it’s a stretch to distill popular mandates out of Senate races when only one-third of the body is up for reelection every two years. If we’re talking about the voice of the people being dispositive, what about the other 2018 races? What about the 41 House seats and the 350 legislative seats the Democrats flipped? That suggests something about the national mood, no?
There’s another problem with McConnell’s logic. How long does the mandate last? What’s the expiration date? In February and March of 2016, he stressed again and again that the voice of the people that mattered was the upcoming one—the November 2016 election. On February 23, 2016, he said, “The Senate will appropriately revisit the matter after the American people finish making in November the decision they’ve already started making today.” There was no mention of the mandate that dated back to 2014 or to 2012. And in 2016, the November election was seven months away, not six weeks.
This is sophistry. There never was a principle and there isn’t now. No one exemplifies the charade better than Sen. Lindsey Graham, who invited opponents to “hold the tape” as he declared fealty in 2018 to the iron law of thou-shalt-fill-no-vacancies-in-an-election-year. On Saturday, he mumbled, “The rules have changed as far as I’m concerned.”
They have. We are spiraling down to a position where there are no rules, and that is a perilous place for the nation.
Both Democrats and Republicans have drunk deeply from the cup of hypocrisy on all subjects and on nothing as much as Supreme Court nominations. And both sides have inflicted and suffered wounds. But this is beyond hypocrisy. Republicans sat on President Obama’s nomination of Merrick Garland for the better part of a year explaining that in an election year, the Senate need not act on the president’s nomination. To reverse themselves now is not just to be hypocrites, but to make fools of those who accepted their explanation four years ago. The appropriate words here are fraud and deceit. There are times—or there ought to be—when you’ve boxed yourself in. Sauce for the goose is sauce for the gander. If not, you invite chaos. If no one’s word can be trusted, not even a little bit, everything comes down to force.
Ginsburg’s tragic death comes at a moment when the country can barely contain the atmospheric pressure of a pandemic, a deep recession, and poisonously partisan politics. Republicans object that they are only doing what Democrats would surely do if the shoe were on the other foot. While that might be true, it’s a guess. The shoe is where it is, and the responsibility falls on Republicans not to blow up the process.
This administration has demonstrated contempt for law and procedure in a thousand ways. The Department of Justice is becoming an arm of Trump, Inc. The military has been used to clear demonstrators from Lafayette Square (before curfew no less). The administration flatly refuses to honor congressional subpoenas. Congressional Republicans have prostrated themselves before the president, repeating his lies and declining to play any moderating role. The president threatens not to respect the outcome of the election. Violence between anti- and pro-Trump extremists has already led to deaths.
Republicans are choosing to set fire to their credibility and push the polarization accelerator to the floor just when the nation most needs to back away from shattering provocations.
Republicans are sensitive to the demands of their constituents, some of whom are eager to seize the moment. But wise Republicans should pause to consider that Democrats have constituents too, and they will be outraged and radicalized by a pre-election confirmation. What would it gain Republicans if they achieve a six-vote majority on the Court only to see the Democrats expand the size of the Court as payback?
The Supreme Court remains one of the last institutions in American life to enjoy credibility with the American people: 58 percent approve of the way the Court is handling its job, compared with 21 percent who approve of Congress, 45 percent who trust mass media, and 36 percent who trust organized religion. Only 43 percent of Americans approve of President Trump.
If the Democrats “pack” the Court, its precious prestige will be destroyed. Republicans should pull back from the precipice, or risk reaping the whirlwind.