Originally published September 23, 2020
The year 2020 threw the United States another curveball with the passing of Ruth Bader Ginsburg. Her vacant seat on the Supreme Court is an inverse of the situation that occurred four years ago, when Justice Antonin Scalia passed away during an election year. This time, however, the Republicans hold the presidency in addition to the Senate.
Leaving no doubt as to his intentions, President Trump said that he would nominate a Justice by the end of the week. This is perfectly normal, and his responsibility as the President. As Ted Cruz told ABC’s George Stephanopoulos, “If you look at history, if you actually look at what the precedent is, this has happened 29 times; 29 times, there has been a vacancy in a presidential election year. Now, presidents have made nominations all 29 times – that’s what presidents do. If there’s a vacancy, they make a nomination.” This number includes President Obama’s nomination of Merrick Garland. There is nothing abnormal or even controversial of Trump nominating a justice.
The controversy comes in during the confirmation process. In 2016, after Garland was nominated, Senate Republicans, who were the majority, did not hold a vote on the floor of the Senate, nor did they hold hearings. That was their prerogative, as the majority. As Cruz explained, 19 of the 29 times the president was the same party as the Senate, and the Senate confirmed 17 of those justices. Ten times, the president and Senate were different parties, and the Senate only confirmed two of those justices. So while this may be considered a “controversial” move in light of the way it played out in 2016, there is a lot of historical precedent for what is happening.
This being politics, everyone is playing the other side’s statements from 2016 as a “gotcha” to the opposition. The GOP put out a two-minute video full of a few examples.
Joe Biden: “The American people deserve a fully-staffed court of nine.”
Hillary Clinton: “The president nominates and then the Senate advises and consents, or not, but they go forward with the process.”
Nancy Pelosi: “What we’re seeing here, and I hope this is temporary, is a disrespect for the Constitution… The American people expect the president’s nominee to be given a fair hearing and a timely vote in the Senate.”
Bernie Sanders: “The Constitution is 100 percent clear. The President of the United States has the right to nominate someone to be a Justice of the Supreme Court. Senate’s function is to hold hearings and to vote.”
Chuck Schumer: “Every day that goes by without a ninth justice is another day the American people’s business is not getting done.”
Even Ruth Bader Ginsburg herself chimed in, in 2016: “The president is elected for four years not three years, so the powers that he has in year three continue into year four, and maybe some members of the Senate will wake up and appreciate that that’s how it should be.”
In addition to the normal, constitutionally-mandated procedures and the abundance of quotes from 2016 Democrats, the election itself provides the necessity for a full bench on the Supreme Court. The sheer volume of mail-in ballots in 2020 will likely cause a slew of legal contests that will need to be decided, and could easily elevate to the Supreme Court like it did in the Bush-Gore election of 2000. For the sake of the election, there should be a full bench.
So, the hand the Democrats have been dealt consists of normal presidential procedure, normal Senate procedure, a vast cornucopia of arguments they themselves made four years ago, and a judicial necessity to fill the vacancy. As the old saying goes, “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on your side, pound the table.” So, Democrats are pounding the table.
Former CNN host Reza Aslan tweeted: “If they even TRY to replace RBG we burn the entire [expletive deleted] thing down.” Huffington Post political writer Laura Bassett said, “If McConnell jams someone through, which he will, there will be riots. … *more, bigger riots.” Apparently, Aslan and Basset forgot that Democrats have already been rioting and burning down cities for four months now.
Nancy Pelosi claimed that the Democrats have “arrows in [their] quiver.” She is referring to multiple threats that Democrats have posited in retaliation against Republicans filling the vacancy, should they win the presidency and both Houses of Congress in November. These include (but are not limited to) adding four more justices to the Supreme Court, giving statehood to Washington, DC, Puerto Rico, and Guam so the Democrats have up to six more Senators, impeaching Trump (again) to tie up the Senate in procedure, and nuking the legislative filibuster so they can do whatever they want. All of these options are much farther outside the constitutional norms that they claim Trump is violating. Any one of these acts could irreparably demolish an already fragile nation.
As Ben Shapiro explained, this is political terrorism. Americans shouldn’t give in to the threat that Democrats will destroy the system if Republicans go through a standard process of government, even if the timeline is truncated. The biggest rebuke to that level of blackmail would be an overwhelming Republican victory in 2020.
As for the charge of hypocrisy leveled at the GOP – in the last four years, Republicans have been called sexist, racist, liars, homophobes, transphobes, murderers, child-cagers, World War starters, NATO destroyers, Armageddon-bringers, war-mongers, soldier haters, Nazis, white supremacists, KKK members, and many other names – being called a hypocrite, as Hillary Clinton said, “[a]t this point, what difference does that make?”