‘Oh the hypocrisy!’ cried the Democrats after Senate Majority Leader Mitch McConnell said he would bring President Trump’s new Supreme Court nominee to the floor for confirmation hearings and a vote ahead of the election. The screeching continued as swing vote after swing vote — Sens. Lindsey Graham, Chuck Grassley and Mitt Romney, for example — said they also supported taking a vote.
Republicans are indeed treating the vacancy left by Ruth Bader Ginsburg, who passed away on Friday night, far differently than they did the one left by Antonin Scalia in 2016. The GOP had control of the Senate then, too, but refused to advance President Obama’s nomination of Merrick Garland, citing the proximity of the presidential election. What was also different then was that the executive branch and the Senate were held by different political parties. Joe Biden famously said in 1992 when George H.W. Bush was president and Democrats held the Senate that a SCOTUS nomination should be put off until after the election because a ‘divided government’ meant there was no ‘consensus’ on who to confirm. McConnell invoked this exception to the Senate’s ‘advise and consent’ role as the ‘Biden rule’ in 2016.
Whether you believe McConnell was really acting out of a regard for precedent or just protecting his party’s interest, well, that’s politics, baby. You do things that help your coalition and avoid things that hurt them. Meanwhile, the Democrats ought to be careful accusing Republicans of hypocrisy, because the charge can just as easily be turned back on them. Some of the loudest voices in the Democratic party were insisting that the Senate had the obligation or duty to advance the nomination then. Now, when a conservative court majority looms, they say exactly the opposite.
‘I made it absolutely clear that I would go forward with the confirmation process as chairman even a few months before a presidential election,’ Biden said in 2016, adding that the Senate has a ‘constitutional duty’ to fulfill the vacancy on the court. Shortly after RBG’s passing, and borrowing a popular Obama phrase, he said, ‘Let me be clear: the voters should pick a president, and that president should select a successor.’
Sen. Chuck Schumer was also on the record numerous times in 2016 calling for the Senate to ‘do its job’: ‘In order for justice to remain a pillar of this nation we must have a functioning judicial branch. The #SCOTUS must have nine.’ Speaker Nancy Pelosi similarly said, ‘The American people expect Merrick Garland, the President’s nominee, to be given a fair hearing and a timely vote in the Senate. The Senate should do their job.’
Members of the Senate Judiciary Committee also held this line after Scalia’s passing. Here’s a non-exhaustive list:
Sen. Dianne Feinstein: ‘We were sent to Washington to serve our constituents for six years. That includes considering nominees to the Supreme Court.’
Sen. Patrick Leahy: ‘It would be totally irresponsible for us to wait that long.’
Sen. Dick Durbin: ‘In a few weeks the Supreme Court will start its new term with eight justices. We need nine. Major legal questions are hanging in limbo because the court is deadlocked on 4-4 votes.’
Sen. Cory Booker: ‘The Senate has no excuse to ignore, blockade, or stonewall consideration of this nominee’
Sen. Chris Coons: ‘The Constitution says that the president shall nominate and the Senate shall provide advice and consent. Advice and consent does not consist of simply putting your hands over your ears and saying “nah-nah-nah-nah-nah, we refuse to even have a hearing,” no matter who the nominee is’
And Sen. Richard Blumenthal, who said he will ‘fight like hell’ against Trump’s nominee (though certainly not as hard as he did in Vietnam) said in 2016, ‘There’s a duty to fill that vacancy, to make the system work.’
Alas, the hypocrisy cuts both ways. Besides, it would be silly for the Republican party to accept such moral grandstanding from the party that amplified bogus gang rape allegations against the last SCOTUS nominee and is threatening to riot if they don’t get their way.