The argument against confirming Donald Trump’s nominee to the Supreme Court before the inauguration is a Republican argument. They invented it, they enacted it, and they own it. That’s because it was Republicans, not Democrats, who changed the number of Supreme Court justices from nine to eight for 10 months in 2016, when a Democratic president was in the White House. It was Republicans who argued that no Supreme Court nominee should even be considered by the Senate in an election year. And it was Republicans who promised to block the confirmation of Hillary Clinton’s Supreme Court nominees in the event that she became president while Republicans retained control of the Senate.
The mainstream media, however, does not seem to understand that. Its inability to cover the political fallout from the passing of Ruth Bader Ginsburg with a modicum of accuracy borders on bad faith. Here’s New York Times pollster Nate Cohn Columbusing the idea that maybe Senate Republicans are just acting in their political self-interest. Here’s a Politico headline saying “McConnell fends off accusations of hypocrisy”—which is like writing “Iceberg fends off Titanic.” And while the media is doing a better job of juxtaposing Senator Lindsey Graham’s past statements—insisting that he would not confirm a justice in the last year of a presidential term—with his current stance, I’ve seen him called “defiant” when all he’s really saying is that he’s a liar whose word is worthless.
While Republicans debase themselves to explain why only Republicans get to be on the Supreme Court, Democrats are merely asking Republicans to follow their own rules—the rules they invented in 2016 to block Merrick Garland. If Garland were on the Supreme Court now, Democrats would have no legitimate argument to block Trump’s appointment of Ginsburg’s replacement. Hell, if Garland had received so much as a vote on the Senate floor, and been turned away by the Republican-controlled Senate, Democrats would have no legitimate argument to block Ginsburg’s replacement.
But Garland received no hearing. He received no up-or-down vote on the Senate floor. Republicans refused even to meet with the man privately. They did not so much withhold their advice or consent on Obama’s Supreme Court appointment as refuse even to consider performing that basic constitutional function, based on their unprecedented theory that no court appointments could be made in an election year.
Republicans, of course, have already violated this made-up “no new judges in election years” rule. Thus far in 2020, the Republican Senate has confirmed three circuit court judges and 26 district court judges. I counted. That’s 29 people confirmed for lifetime appointments in an election year by the party that refused to allow a vote on the Garland appointment.
Maybe the media didn’t cover these 29 acts of hypocrisy as such because they weren’t Supreme Court appointments. But now that Republicans plan to violate their own precedent on the high court, the least the media can do is report on this Republican hypocrisy accurately. Either Republicans were lying in 2016, or they’re lying now.
Mitch McConnell has the votes to push this through. As of this writing, only two Republican senators have balked at the kind of brazen hypocrisy the Senate majority leader now demands of them. Senators Susan Collins and Lisa Murkowski, respectively of Maine and Alaska, have indicated that they are unwilling to confirm a nominee before the election on November 3. That’s all well and good, but it’s not enough. Other so-called moderates, including Senator Mitt Romney, have indicated that they will confirm Trump’s nominee. Romney voted earlier this year to remove the president from office, but thinks this same president should get a Supreme Court pick after an election has already started. Tells you something about how far Republicans are willing to go to control the courts.
These Republican moderates were never going to do the right thing. Even the statements from Collins and Murkowski are worthless. While the election happens on November 3, the transfer of power (should Joe Biden defeat Trump) will not happen until January 20, 2021. A new Congress does not assume power until noon on January 3, per the Constitution. It’s still not clear if McConnell can move quickly enough to push through Trump’s nominee before the election, but he has already indicated that he’s willing to confirm the nominee after the election, regardless of the results. We are looking at a scenario in which people who have already been voted out of office claim the right to appoint a Supreme Court justice who will wield power for 40 years or more.
The nation’s highest court is on the cusp of losing its last shred of legitimacy. A Supreme Court that includes one justice, Neil Gorsuch, who was confirmed only after the application of McConnell’s election-year confirmation rule, and another justice confirmed only after Republicans ignored that rule, is facially illegitimate. That’s really not a difficult argument to grasp. “Heads I win, tails you lose” is not a legitimate way to run a constitutional government. Should McConnell, having succeeded in the Garland gambit, end up replacing Ginsburg before the inauguration, then he will have proven twice that appointments to the federal judiciary are nothing more than an exercise in raw political power.
Since the Democrats don’t have enough votes to block Trump’s nominee, but can count on Republicans to operate in extreme bad faith, there is really only one thing left to do. As I wrote yesterday, expanding the number of justices on the court is the proportional, constitutional response to Republican manipulation of the court. If Republicans make the number of justices on the Supreme Court a mere function of which party happens to control the government when the random wheel of death claims a victim, then Democrats can also change the number of justices when they have the opportunity to do so.
Make no mistake: The opposite view, the argument against Democrats’ adding justices should they win back control of the government, devolves into the logic that only Republicans get to decide how many justices are on the court. Only Republicans get to use raw political power to shape the court when it suits them.
And that argument is simply untenable. We do not have a legitimate third branch of government if only one party gets to choose its members.
I’m not sure why the media struggles to get this part of the story right, but I have a theory. For people who see politics as part of some quirky little game, McConnell’s will to power is an interesting story. For many in the media, the rights that are on the chopping block should McConnell succeed at this scheme are not rights that affect them personally. A 6-3 Republican-controlled court won’t take away their health care. It won’t make it harder for them to vote. It won’t make it easier for cops to shoot them. It won’t affect their rights to marry or adopt children. And for men in the media, the Supreme Court does not presume to tell them what they can do with their own bodies.
For the rest of us, the majority of this country, who need access to health care and need polling places to remain open and can’t fly off to Canada to get an abortion, McConnell’s power grab represents an existential threat to democratic self-government. This isn’t a game. This isn’t another episode in the ongoing reality show “The American Experiment.” This is our lives and rights and ability to be governed by laws we choose for ourselves.
If those fundamental rights are to rest on the raw power of the party that last won an election, so be it. But that means—must mean—that when the other party controls the levers of power, it too will not flinch or miss its opportunities to use those powers.
If power is all you care about, power is all you’ll get. That’s where we are, and I’d appreciate it if more in the media educated themselves on this context. McConnell has already fired first. The Democrats are allowed to defend themselves.