After all too many nail-biter scares over the past four years, Supreme Court Justice and political icon Ruth Bader Ginsburg passed away last Friday, leaving a vacant SCOTUS seat in her wake.
In the chaotic social media aftermath, frantic liberals worried that President Trump, Senate Majority Leader Mitch McConnell, and their Republican colleagues would attempt to ram through a new Justice in the dwindling days remaining until the election, giving the highest court in the land a six-to-three conservative majority. Could they possibly attempt to do so after McConnell famously denied President Obama a similar opportunity in 2016?
Anyone who actually wondered as much has not paid enough attention during the last 12 (or 25) years.
The only deterrent for the GOP ramming through a SCOTUS pick would be the fear of looking hypocritical.
That is not a fear Republicans appear to possess.
Trump has already announced that he will make his pick by this weekend, and a recent list of whom he might nominate for the job included Senator Ted Cruz… who in 2016 suggested blocking a theoretical President Hillary Clinton’s Justice nominee indefinitely.
A better question than whether Republicans would dare behave hypocritically would be: How could anyone not expect as much by now? We’re in the fourth year of the presidency of Donald Trump, a man who wielded the racist Birther conspiracy against America’s first Black president for five years, and yet never stops whining about being treated unfairly; a Law and Order president who respects no laws himself; a man for whom there’s always a tweet. The jury is not still out on whether Trump is a hypocrite. He is. A big one! Anyone who disputes the charge disputes reality.
It’s not just Trump, though, obviously. Today’s Republican party operates in perfect lockstep with their leader’s hypocrisy, by supporting his every move and by the merits of their platform overall. This is the pro-life party that agrees 200,000 dead Americans makes an A+ COVID response; the believers in small government who also want to federally police women’s bodies. Republicans would clearly rather be hypocrites who force their agenda through than politicians who confront resistance in good faith and sometimes lose.
Some of them invent justifications for their hypocrisy. Although Mitch McConnell wrote in 2016 that “the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court,” within minutes of Justice Ginsberg’s passing, McConnell released the following statement: “In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no senate has confirmed an opposite party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”
McConnell invented a brand-new precedent to follow, moving the goal posts to fit the situation. The logic is paper-thin, but that doesn’t matter. All that does is whether the Republican-controlled senate agrees, which the vast majority of its members seem to do.
Senator Lindsey Graham had even more damningly contradictory words from 2016 about filling a SCOTUS seat in an election year.
“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 Graham said let’s let the next president, whoever it might be, make that nomination." pic.twitter.com/quD1K5j9pz
— Vanita Gupta (@vanitaguptaCR) September 19, 2020
Surely, even he would have to agree that there’s no way to put that toothpaste back in the tube, right?
Fortunately for Graham, Republicans need not pretend their words are anything other than worthless details to be revised when the situation no longer applies.
Democrats chose to set in motion rules changes to stack the court at the Circuit level and they chose to try to destroy Brett Kavanaugh’s life to keep the Supreme Court seat open.
You reap what you sow.
— Lindsey Graham (@LindseyGrahamSC) September 20, 2020
Graham would love nothing more than to stick to his stated principles, you see, but alas—egads!—the pesky Democrats have pushed him to do the opposite. Forced his hand, they did. What are the odds?
The response from some Democrats, at least in public, has been predictably tepid.
This party seems to be terminally addicted to bringing toothpicks to a knife fight.
“A basic principle of the law—and of everyday fairness—is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment,” President Obama said in a statement. “The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard.”
What has happened in the course of human history that suggests today’s Republican Senators would answer this call? Not one thing. Yet Democratic presidential candidate Joe Biden echoes his former boss, imploring his Republican colleagues to “follow your conscience.”
They both must know by now that this is the stuff of pure fantasy; why even bother pretending otherwise? Applying rules “based on what’s convenient or advantageous in the moment” is a central pillar of the Republican party in 2020. At a certain point, we would all do well to just admit that’s the case and proceed accordingly.
Conservative blogger Matt Walsh recently tweeted a succinct summary of the Republican reasoning behind Trump filling Ginsberg’s seat before the election.
To be clear, I wanted McConnell to refuse to hold hearings for Garland because I didn’t want Garland on the court. I want the hearings now because I do want Trump’s pick on the court. That’s the way the game is played, you dumb whiners. It’s not “hypocrisy,” it’s just politics.
— Matt Walsh (@MattWalshBlog) September 20, 2020
Personally, I appreciate the honesty of Walsh’s admission. (I even let him know as much on Twitter, with a crude insult thrown in for good measure.) Despite McConnell’s and Graham’s façade of righteousness, this isn’t a case where the circumstances happen to demand the desired result; it’s one where the circumstances are reverse-engineered to justify the desired result.
If you don’t believe me, though, believe Donald Trump, who takes after Walsh more so than his colleagues, McConnell and Graham, with a consistent dedication to saying the quiet part out loud:
“When you have the Senate, when you have the votes, you can sort of do what you want as long as you have it,” says Trump, defending moving ahead with SCOTUS nomination 44 days until the election after GOP wouldn’t move ahead with Garland eight months before an election
— Manu Raju (@mkraju) September 21, 2020
Democrats are far from perfect, and a certain degree of hypocrisy is perhaps inevitable in any political party, but one of the Dems’ most glaring flaws is an over-reliance on norms and institutions and the outdated ideals of The West Wing. Flagrant rule-flouting is decidedly not their brand. The idea that everything Republicans have done since 2013 is a justified escalation following then-Senator Harry Reid’s use of the nuclear option on filibusters is beyond a stretch.
The GOP is a party that simply disregards rules it has no use for: ignoring subpoenas, protecting Trump’s tax returns, supporting a brazenly partisan attorney general, despite all the pearl-clutching around the infamous 2016 tarmac summit, and pretending all of this is simply how you play the game.
Biden’s plea to Republicans to follow their conscience is misguided. Of course, they’ll follow their conscience! That’s the problem.