They have the power to do so, of course, because they have the majority. But that doesn’t mean they aren’t pretty transparently violating their own standard. Even a couple of GOP senators who are balking at the gambit are suggesting it would be hypocritical.
That said, Republicans offered a few arguments over the weekend for why this situation is somehow different. Let’s run through them.
The opposing Senate majority
The most oft-cited argument by Republicans — especially Senate Majority Leader Mitch McConnell (R-Ky.) — is that the situations aren’t totally analogous. The reason: The presidency and the Senate are controlled by the same party. In 2016, there was a Democratic president and a Republican Senate.
McConnell’s team this weekend pointed to a number of times in 2016 when McConnell had mentioned the split. He regularly cited Grover Cleveland in 1888 as the last time a Senate controlled by the opposition party confirmed a nominee in a presidential election year.
But citing that fact isn’t the same as saying that’s what the standard should be based upon. And there were many times when McConnell and other top Republicans set the standard without making any caveats about a president-Senate split.
“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said upon Antonin Scalia’s death in February 2016. “Therefore, this vacancy should not be filled until we have a new president.”
He added at another point: “Rarely does a Supreme Court vacancy occur in the final year of a presidential term. … Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in.”
Now-Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) also said explicitly in 2016 that this standard would apply even to a vacancy under a Republican president.
“I want you to use my words against me: If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey O. Graham said, ‘Let’s let the next president, whoever it might be, make that nomination,’ ” Graham said in March 2016. “And you could use my words against me, and you’d be absolutely right.”
Graham’s dual defense
Those words are now indeed being used against Graham — and rightly so. But Graham is offering a different defense than is McConnell. Rather than pretend his standard applied only to split government, Graham suggests that two things warrant his flip-flop:
- Democrats going “nuclear” — i.e. eliminating the 60-vote threshold — for non-Supreme Court nominees in 2013.
- How Democrats treated then-Supreme Court nominee Brett M. Kavanaugh in 2018, when he was accused of decades-old sexual assault.
Graham referenced these twin game-changers on multiple occasions over the weekend while defending his decision.
“Democrats chose to set in motion rules changes to stack the court at the Circuit level and they chose to try to destroy Brett M. Kavanaugh’s life to keep the Supreme Court seat open,” Graham said. “You reap what you sow.”
Democrats did indeed set this process in motion in 2013 by going nuclear. (They had argued it was necessary, given GOP obstruction of Obama’s judicial nominees, but they did change the standard, which the GOP in 2017 extended to Supreme Court nominees.) As for Kavanaugh’s treatment, that’s a subjective matter for people to decide for themselves. He was eventually confirmed after a brief FBI review.
But Graham’s 2016 comments happened three years after Senate Democrats went nuclear. And Graham reasserted his principle about election-year nominees even as the Kavanaugh situation was wrapping up in 2018.
“If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election,” Graham said on Oct. 3, 2018.
The FBI delivered its findings to the Senate the next day, and Kavanaugh was confirmed Oct. 6.
If the Kavanaugh situation had so changed Graham’s calculus, you would think he would have said so in real time. But he didn’t.
We can’t have a tied Supreme Court
Sen. Ted Cruz (R-Tex.) this weekend highlighted another argument: It would be irresponsible to leave the Supreme Court with eight seats, given that it may have a role to play in deciding the 2020 election, and having an even number could result in a tie.
“We cannot have Election Day come and go with a 4-4 court,” Cruz told Fox News’s Sean Hannity. “A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election.”
Except that isn’t something Republicans were much concerned about in 2016, when they invited just such a scenario.
And among those unconcerned was Cruz himself. When asked on NBC’s “Meet the Press” about that argument, Cruz suggested it wasn’t a danger or even a big deal — much less a “constitutional crisis.”
“Look, the consequence of a 4-4 tie is that the judgment of the court of appeals is affirmed by an equally divided vote,” Cruz said. “This has happened many times in history that there have been vacancies, sometimes on a closely contentious case. They’ll hold it over for the next term, when the replacement justice arrives.”
Arguing that Democrats have flip-flopped, too
Republicans have argued that, however inconsistent their own position is, Democrats are hardly without fault. Republicans point to 2016 comments in which Democrats (and even Ginsburg) stressed the need to take up the nomination vacancy — even beyond their complaints that it was unfair not to hold hearings.
Among the comments highlighted have been ones from Joe Biden, who said in 2016, “I made it absolutely clear [in 1992] that I would go forward with the confirmation process as chairman, even a few months before a presidential election if the nominee were chosen with the advice and not merely the consent of the Senate, just as the Constitution requires.”
Biden’s comment has been truncated by some to suggest he was saying the Senate has an obligation to take up the nomination, full stop, which isn’t quite what he was saying (he stressed the need for the Senate’s “advice” role to be heeded as a condition, not just “consent”). But others more directly said the Senate had a duty to take it up.
Even Ginsburg weighed in. When the New York Times asked her whether Garland’s nomination should be taken up, she said firmly, “That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year.”
Democrats are now arguing for leaving the seat open for several months — albeit not as long as it was in 2016, when the vacancy occurred in February of the election year. And there’s certainly something to be said for why a supposed constitutional imperative may not apply today.
But they’re also operating in a world that the GOP effectively changed in 2016. The GOP’s claims that they were following a long-standing “Biden rule” were vastly oversimplified. And to allow the GOP one standard for a Democratic president and another for their own party’s presidents would be something amounting to political suicide.
(Democrats also tried in vain in 2018 to argue that the GOP’s 2016 stance should apply to Kavanaugh’s nomination, but their case didn’t make logical sense.)
The GOP has the power to do what it wants
At times, Republicans and their allies have made a pretty simple and transparent argument: We have the power to do what we want.
One key figure notably making that argument over the weekend was Sen. Lamar Alexander (R-Tenn.). Some critics of this gambit hoped he might hold out, given that he’s retiring this year and is known as an institutionalist. But Alexander erased any doubts about whose side he’s on with this statement.
“No one should be surprised that a Republican Senate majority would vote on a Republican President’s Supreme Court nomination, even during a presidential election year,” Alexander said. “The Constitution gives senators the power to do it. The voters who elected them expect it.”
Sen. John Barrasso (R-Wyo.) added Sunday on “Meet the Press”: “If the shoe were on the other foot, and the Democrats had the White House and the Senate, they would right now be trying to confirm another member of the Supreme Court.”
Barrasso may be right, but it’s entirely speculative. Alexander, though, is definitely right. Republicans can do whatever they want, as they have the majority. But there is also that matter of rhetorical consistency and faith in government. To the extent politicians claim a principle and then abandon it when it’s convenient, all future claims to principles should be judged accordingly. No one has a monopoly on hypocrisy in politics, but to throw up your hands and just write something off as understandably ruthless is certainly a commentary on our current politics.
It’s a little like all the times presidential candidates say all manner of awful things about their fellow partisans during the primaries, and then turn around and disown those criticisms when their opponent wins. The question is: Did you mean it when you said it? Or were you just saying stuff you didn’t believe for political gain? And either way, how can we believe you now?
Perhaps the most pronounced example of this has come from Graham. In 2016, he attacked Trump by saying: “I think he’s a kook. I think he’s crazy. I think he’s unfit for office.” By late 2017, though Graham had refashioned himself as a Trump loyalist, and he attacked political pundits for applying the very same labels to Trump: “What concerns me about the American press is this endless, endless attempt to label the guy some kind of kook not fit to be president.”
That senator will now preside over the confirmation hearings of whomever Trump picks for the Supreme Court. And it probably shouldn’t be any surprise that he’s so nakedly abandoned his prior principle. But as with any politician, it should all color our perceptions of how much their word truly means.
If there’s one issue on which politicians would be tempted to abandon their principles, it might be Supreme Court vacancies, given the huge stakes involved. But that doesn’t mean the abandonment of principles isn’t newsworthy.