Caution required
Senate Republicans should focus on coronavirus, not a Supreme Court fight.
Assuming that it was not just a partisan sound bite intended to make the heads of liberals and Democrats explode, U.S. Senate Republicans should carefully reconsider recent statements in favor of filling any possible Supreme Court vacancies that might occur this year.
The hypocritical use of such raw political power will not only degrade the ideal of an independent and nonpartisan judiciary — if we haven’t already passed that point — it will do serious damage to the confirmation process, the separation of powers and to the American sense of fairness.
It’s all the worse that Republican senators would think about dragging the country through a political maelstrom at the time we are dealing with a deadly pandemic and another polarizing election. The Senate would better serve the nation by concentrating on issues related to quelling the spread of the novel coronavirus and helping people, businesses and local governments to get back on their feet.
The possibility of a 2020 Supreme Court confirmation battle flared last week when 87-year-old Justice Ruth Bader Ginsburg, the oldest member of the court, was briefly hospitalized with a gall bladder infection.
Republicans wished the justice a speedy recovery, which she apparently has made, but noted that they will not hesitate to move forward on a Supreme Court nomination if a vacancy occurs.
That would be normal operating procedure except that in 2016, Senate Majority Leader Mitch McConnell, R-Ky., refused to even hold a hearing for Merrick Garland, then President Barack Obama’s choice to fill the Supreme Court seat opened by the sudden death of Antonin Scalia.
McConnell and Republicans on the Senate Judiciary Committee, including Texas Sen. John Cornyn, cited the impending election as the reason for holding off on any hearings.
“The presidential election is well underway,” a letter signed in 2016 by Cornyn and other GOP members of the committee. “The American people are presented with an exceedingly rare opportunity to decide, in a very real and concrete way, the direction the Court will take over the next generation. We believe The People should have this opportunity.”
But when asked last week what should happen in this election year,
Cornyn told Politico, that “if the president makes a nomination then it’s our responsibility to take it up.”
Cornyn’s office says there is no contradiction in the senator’s position because Obama was barred by term limits from seeking re-election in 2016 and the Senate was controlled by a different party than the White House. McConnell notes that the Senate hasn’t confirmed an election-year nominee by a president from a different party since 1880, citing that as precedent and tradition for blocking Obama’s pick.
That’s bunk and McConnell and Cornyn know it. The majority leader repeatedly justified his stonewalling of the 2016 Garland nomination — a decision he’s called his proudest moment — on the grounds that, coming within a year of a bitterly contested election, the American people should have a say in such a momentous decision. That opportunism was offensive then and is now, but McConnell and Cornyn both threaten to add hypocrisy to the charge of political expediency.
Besides, no one really doubts that McConnell is more interested in his crusade to put more conservatives through the federal court system than he is about preserving precedent and tradition. He changed the rules in 2017 to overcome a Democratic filibuster of Scalia’s successor Neil Gorsuch, meaning that a new justice can be confirmed by a bare majority. Brett Kavanaugh, President Donald Trump’s second nominee, was approved 50-48 after one of the most hostile and ugly hearings in memory.
There is blame for that ugliness on both sides, and it’s not McConnell’s fault alone that any new confirmation hearing will bring about a political earthquake. But that’s the world we live in. Even Cornyn admits a 2020 confirmation process would be worse, especially if it involves the replacement for Ginsburg or one of the other more liberal justices. Conservatives currently hold a 5-4 advantage.
“If you thought the Kavanaugh hearing was contentious this would probably be that on steroids,” he told Politico.
And that, more even than the hypocrisy on such brazen display by Cornyn and McConnell, is the reason why the Senate should exercise extreme caution before moving forward to fill any vacancy. In the meantime, we can hope that all nine justices make it safely through this perilous year.