“The last 70 years, a Supreme Court justice was not confirmed in the final year of a president’s term,” preached the future Fox host, then a frequent guest on “Hannity.” She fretted that it “doesn’t matter” to left-leaning partisans. This was lofty-sounding but wrong: To pick just one of many examples to the contrary, the Democratic-controlled Senate unanimously confirmed President Ronald Reagan’s nomination of Anthony M. Kennedy in early 1988, an election year.
Fox hosts Sean Hannity and Dana Perino, too, signaled their approval of stonewalling Obama’s nomination pick.
“You know, it’s interesting — what goes around comes around,” Hannity opined, mentioning McConnell’s citation of the supposed “Biden rule” to justify the move. “Why should the Republicans act any different?”
There was no such rule, though: Joe Biden, as a senator from Delaware in 1992, had been discussing, in a 1992 speech, “a hypothetical situation involving a voluntary resignation, not a death, that never came to pass,” as Matt Gertz of Media Matters pointed out.
Such high-mindedness was in short supply during Fox’s popular opinion segments on Friday evening. While Fox’s news team gave ample attention to the life and career of the just-deceased Justice Ruth Bader Ginsburg, and TV news across the spectrum discussed the likely next maneuvers in filling her vacancy, nothing was as raw as the comments by conservative activist Ned Ryun.
“This is an opportunity, and I say they seize the moment,” urged Ryun, founder of the grass-roots candidate-training factory American Majority, in an interview with Fox News’s Tucker Carlson, barely an hour after news broke of Ginsburg’s death.
For his part, Carlson did have the grace to suggest it might be well to tone things down in those initial hours and wait a bit to respect Ginsburg’s memory. But he also threw doubt on a credible report that Ginsburg had expressed her “most fervent wish” that the next president would appoint her replacement.
“It’s hard to believe, and I’m going to choose not to believe that she said that, because I don’t think that people on their deathbeds are thinking about who’s president. You hope not — that’s a pretty limited way to think as you die. But certainly this will be used as a cudgel by the left.”
The problem is that her words, according to NPR’s reporting, were not uttered in her final hours but a few days earlier in a conversation with her grandchild.
Fox News, though, wasn’t the only place to find tortured logic and misrepresentations.
“Ted Cruz with an excellent point,” tweeted Marc Thiessen, the American Enterprise Institute fellow and Washington Post columnist. “If election is litigated can’t risk having just 8 justices and the possibility of a deadlocked court. Could cause a constitutional crisis.”
There were thousands of retweets and likes, but a number of people who pointed out that Cruz and Thiessen seem to have short memories. After all, there was an ideologically split eight-member court in November 2016 — for the very reasons discussed above. (Also, if you’re worried about a constitutional crisis, how about an election settled with the help of a justice Trump just appointed?)
In coming days, you can be sure to hear and read about such things as the “Thurmond rule,” the “McConnell rule,” the “Biden rule” — none of which exist in law, and sometimes not even in writing. At most, they are conventions, not rules.
(According to the Brookings Institution, Strom Thurmond, the longtime senator from South Carolina who chaired the Senate Judiciary Committee, is credited with an “unwritten admonition” that “in presidential election years, the Senate should stop processing judicial nominations around the time of its summer recess, perhaps with limited exceptions for clearly non-controversial nominees.”)
There’s no reason to think that the pro-Trump media and right-wing politicians will have a monopoly on self-serving justification in coming days. It’s likely to be a dysfunctional circus.
The media — of all stripes — could keep from making it worse by maintaining a level tone, by not twisting the facts for the sake of partisanship, and by pushing back against misrepresentations.
Based on the initial hours after Justice Ginsburg’s death, that’s going to be an unreasonably high bar.
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