Now that three key GOP senators — Mitt Romney (Utah), Charles E. Grassley (Iowa) and Cory Gardner (Colo.) — have said they will not object to their leaders pressing forward with a Supreme Court nominee, despite their party’s 2016 stance against doing so in a presidential election year, the direction this fight is headed seems pretty clear.
But some Republicans are going quite a bit further than that. They’re effectively signing off on whoever the nominee is, despite there not actually being a nominee yet. Sen. Thom Tillis (R-N.C.) said as much this weekend in announcing his support.
“There is a clear choice on the future of the Supreme Court between the well-qualified and conservative jurist President Trump will nominate and I will support, and the liberal activist Joe Biden will nominate and Cal Cunningham will support, who will legislate radical, left-wing policies from the bench,” Tillis said.
Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.), meanwhile, declared Monday night that his committee would sign off on the as yet unnominated nominee.
“The nominee’s going to be supported by every Republican in the Judiciary Committee,” Graham said on Fox News.
Advice and consent? Nah, any Trump nominee will do just fine.
The thing is, it’s not at all surprising that virtually every Republican will wind up voting for the nominee. This is how these things generally go. President Trump provided a list of potential nominees before Ginsburg’s death and has since narrowed it down by saying his pick will be a woman. So we’ve got a pretty good idea about the small universe of potential nominees that Graham’s committee might take up and Tillis will be voting on. Many of them have already been confirmed by the Senate to lower federal courts.
But to sign off on any and all of them, sight unseen? That’s another thing entirely. Most of them have been vetted as part of their previous confirmation processes, but the scrutiny involved in that process is nowhere near what it is for a Supreme Court justice. Saying you’ll support whoever it is precludes valid questions about their jurisprudence and character emerging as part of that process.
The Constitution vests in the Senate the power of advice and consent — i.e. to consult with the president on whom he should nominate and then sign off (or not) on whoever that winds up being. Signing off before there’s even a nominee skips over both steps and effectively signals the handing over of a rubber stamp to the president. It also renders the confirmation hearings Graham will run effectively moot — just going through the motions, with a predetermined outcome.
In that way, it’s a remarkable microcosm of the state of our polarized politics: GOP senators and even a GOP leader pledging to confirm whoever their party’s president nominates.
But it’s not the only way in which the norms of this process have shifted in recent days. Some Republican senators have also moved toward embracing a litmus test on a nominee opposing Roe v. Wade — despite the long-standing principle that nominees shouldn’t be judged on specific issues and shouldn’t prejudge any cases that come before them.
Perhaps most prominent among those pressing for such a litmus test is Sen. Josh Hawley (R-Mo.).
Two months ago, I pledged to vote only for #SCOTUS nominees who understand and acknowledge that Roe was wrongly decided. I stand by that commitment, and I call on my fellow Republican senators to take the same stand— Josh Hawley (@HawleyMO) September 19, 2020
“Two months ago, I pledged to vote only for #SCOTUS nominees who understand and acknowledge that Roe was wrongly decided,” Hawley said on Twitter on Saturday morning. “I stand by that commitment, and I call on my fellow Republican senators to take the same stand.”
Hawley indicated Monday that the early favorite to get Trump’s nomination, Amy Coney Barrett, meets his test. But what about the others? Do all of them meet it? He seems to leave open the possibility that whomever Trump nominates might fail his litmus test.
It’s an important question for one specific reason: Hawley sits on the Judiciary Committee. But according to Graham, Hawley will already support the nominee. So perhaps Hawley’s posture is less than meets the eye.
Ruth Bader Ginsburg’s death and succession
The justice’s passing opens up a battle for her replacement
The latest: Trump nominates Amy Coney Barrett to fill Ginsburg seat | Amy Coney Barrett, a disciple of Justice Scalia, is poised to push the Supreme Court further right | Tumultuous path to sixth conservative justice puts Supreme Court in the middle of political fray | Who is Amy Coney Barrett? | What’s next in the Supreme Court confirmation process for Amy Coney Barrett | Where GOP senators stand on quickly filling Ginsburg’s Supreme Court seat
Photos: The life of Ruth Bader Ginsburg | Crowds gather at Supreme Court to mourn the justice
Complete coverage: Justice Ruth Bader Ginsburg dies at 87