“Those are my principles, and if you don’t like them, I have others.” — Groucho Marx
Senator Mitch McConnell, seeking a new fig leaf to disguise the spectacle of hypocrisy that Republicans are presenting regarding the “advice and consent” clause, is sputtering that there really is a principle involved and there is no inconsistency. In order to reach that conclusion, you must contort yourself into a pretzel, so limber up.
McConnell argues that people misconstrue the principles he enunciated in 2016. It wasn’t that a Supreme Court vacancy should not be filled in the final year of a president’s term. No, as he explained in 2019 when asked what he would do in the event of a 2020 vacancy, “I’d also remind everybody ... (that) the Senate is of the same party as the president of the United States. And in that situation we would confirm.”
The McConnell of 2019 should talk to the McConnell of 2016. Justice Antonin Scalia died on Feb. 13, 2016. Here’s what McConnell and Chuck Grassley wrote five days later: “Rarely does a Supreme Court vacancy occur in the final year of a presidential term, and the Senate has not confirmed a nominee to fill a vacancy arising in such circumstances for the better part of a century.” Nothing there about the Senate and the presidency being held by different parties.
McConnell waxed eloquent about the need for the voice of the American people to be heard in the process. “How often does someone from Ashland, Kentucky, or Zearing, Iowa, get to have such impact?”
In 2020, McConnell pivoted to (I paraphrase) Oh, well, only when the presidency and Senate are held by different parties. But why does the party composition of the Senate matter, as a principle? McConnell seems to be saying that because Republicans gained Senate seats in 2018, the people have given them a popular mandate to do the president’s bidding.
Is that the new principle? Because if so, it’s a flimsy one.
It’s true that the Republicans gained two Senate seats in 2018, but it’s also true that they lost one in 2017, in Alabama. Are they basing their mandate on a net gain of one? That’s the vox populi? It’s a stretch to distill popular mandates out of Senate races when only one-third of the body is up for reelection every two years. If we’re talking about the voice of the people being dispositive, what about the other 2018 races? What about the 41 House seats and the 350 legislative seats the Democrats flipped? That suggests something about the national mood, no?
There’s another problem with McConnell’s logic. How long does the mandate last? In February and March of 2016, he stressed again and again that the voice of the people that mattered was the upcoming one — the November 2016 election. There was no mention of the mandate that dated back to 2014 or to 2012. And in 2016, the November election was seven months away, not six weeks.
This is sophistry. There never was a principle, and there isn’t now. We are spiraling down to a position where there are no rules, and that is a perilous place for the nation.
Both Democrats and Republicans have drunk deeply from the cup of hypocrisy on all subjects and on nothing as much as Supreme Court nominations. And both sides have inflicted and suffered wounds. But this is beyond hypocrisy. Republicans sat on President Obama’s nomination of Merrick Garland for the better part of a year. To reverse themselves now is not just to be hypocrites but to make fools of those who accepted their explanation four years ago.
There are times — or there ought to be — when you’ve boxed yourself in. Sauce for the goose is sauce for the gander. If not, you invite chaos. If no one’s word can be trusted, not even a little bit, everything comes down to force.
Republicans object that they are only doing what Democrats would surely do if the shoe were on the other foot. While that might be true, it’s a guess. The shoe is where it is, and the responsibility falls on Republicans not to blow up the process.
Republicans are choosing to set fire to their credibility and push the polarization accelerator to the floor just when the nation most needs to back away from shattering provocations.
Republicans are sensitive to the demands of their constituents, some of whom are eager to seize the moment. But wise Republicans should pause to consider that Democrats have constituents, too, and they will be outraged and radicalized by a preelection confirmation. What would it gain Republicans if they achieve a six-vote majority on the Court only to see the Democrats expand the size of the Court as payback?
The Supreme Court remains one of the last institutions in American life to enjoy credibility with the American people: 58% approve of the way the Court is handling its job, compared with 21% who approve of Congress, and 45% who trust mass media.
If the Democrats “pack” the Court, its precious prestige will be destroyed. Republicans should pull back from the precipice or risk reaping the whirlwind.
Mona Charen is a senior fellow at the Ethics and Public Policy Center.
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