This post has been updated.
Sen. Orrin G. Hatch (R-Utah) called "total B.S." on a question posed by CNN anchor John Berman on Monday, but the abbreviation for bovine excrement could also apply to Hatch's circular logic.
Discussing Neil Gorsuch's nomination to the Supreme Court, Hatch lamented Democrats' unwillingness to approve the Colorado judge or even support an up-or-down vote. Then came this exchange:
BERMAN: Senator, but they look at you and say that's a double standard. I mean, you call Judge Gorsuch one of the most qualified judges ever to be nominated. You're a friend -- almost everyone said the same thing about Merrick Garland, including you.
HATCH: Well, that's right.
BERMAN: So there seems to be a double standard where you're saying, "It was all right last year when we, for political reasons, halted the nomination of Merrick Garland, but it's not okay this year when Democrats try to halt the nomination of Judge Gorsuch." Why is that not a double standard?
HATCH: I'll just tell you straight up: That's total B.S. what you're saying there because there -- I can't go back in time and show you any case where during a presidential election year they've allowed a Supreme Court justice to be nominated unless both sides agreed. And both sides didn't agree on this.
Huh? Hatch just said that Republicans didn't agree to vote on Garland because both sides didn't agree to vote on Garland. Republicans are, of course, one of the two sides. So, Hatch basically said that Republicans didn't agree because Republicans didn't agree.
"There have been Supreme Court nominees that were confirmed during election years," Berman said, following up.
"Yeah, but that's when everybody agreed," Hatch replied. "That's when you had bipartisan support for them."
There it is again. Republicans couldn't support Garland because he didn't have bipartisan support. Or, Republicans couldn't support Garland because Republicans didn't support Garland.
One other point: In 1940, an election year, President Franklin D. Roosevelt nominated Frank Murphy to the Supreme Court and didn't need agreement on both sides to secure confirmation. Democrats held 69 seats in the Senate that year, a filibuster-proof super majority. Murphy was confirmed on a voice vote.
Hatch was right when he said that Republicans acted "within their procedural rights" when they blocked a vote on Garland. But his justification didn't make much sense.
Update: After publication of this post, Hatch's office issued a statement seeking to clarify the senator's remarks:
When Senator Hatch said "I can't go back in time," he was referring to the lack of precedent for confirming a Supreme Court justice who had been nominated after a presidential election contest had begun. In eight op-eds and seven speeches last year, Hatch went on the record to defend Republicans' decision to wait until after the election season to consider a nominee.
As he also stated in today's CNN interview, Republicans decided to separate the confirmation process from the presidential election season before any nominee had been chosen and when nearly everyone believed that Hillary Clinton would be elected. Republicans did so for the same reasons that then-Sen. [Joe] Biden cited in 1992 when he advised against considering Supreme Court nominees in an election year. Senator Hatch objected when the CNN host equated the Garland and Gorsuch nominations because the circumstances of both were drastically different.
Note: There is precedent for confirming a Supreme Court justice nominated after a presidential election contest has begun. Anthony Kennedy was confirmed in the election year of 1988. He was then-president Ronald Reagan's second choice, after the Senate rejected Robert Bork in October 1987. Bork was nominated in July 1987, and even then the White House race was underway. Gary Hart had already dropped out (for the first time) by then.