GOP twists precedent to justify power grab

There’s an old joke in the legal profession about the attorney who goes to court saddled with a case in which the legal precedent clearly favors the other side.

The attorney insists that the previous case doesn’t apply to the attorney’s current case — because the dates and names in that case are different.

Maybe that’s why so many lawyers become successful politicians. They share a knack for bending precedent to suit their agendas.

This skill isn’t unique to one party, but it’s rarely been practiced with the utter shamelessness that we’ve seen from Senate Republicans in their recent handling of Supreme Court appointments.

Last Friday, we lost Supreme Court Justice Ruth Bader Ginsburg, a fearless pioneer in the fight for gender equality, at the age of 87 from complications of pancreatic cancer.

Senate Majority Leader Mitch McConnell, R-Ky., immediately made it clear that he would allow President Donald Trump to fill that court vacancy in the coming weeks.

McConnell’s fellow Senate Republicans quickly fell in line, and it now seems all but certain that Trump’s pick will be confirmed before the Nov. 3 presidential election.

Of course, McConnell and his allies argued in early 2016 that then-President Barack Obama did not deserve a chance to have his Supreme Court nominee, Merrick Garland, brought to the Senate for consideration, because it was an election year and the American people needed to be given a voice in the selection of the next Supreme Court justice.

How can you justify the need to hold a Supreme Court seat vacant for nine months before an election, and then four years later insist that we can’t wait six weeks?

Consider what U.S. Sen. Ted Cruz, R-Texas, said in 2016:

“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”

Cruz also downplayed 2016 concerns about a court vacancy by saying “there is certainly long historical precedent for a Supreme Court with fewer (than nine) justices.”

In a Sunday op-ed for Fox News, however, he warned “our nation is at risk of a constitutional crisis without nine justices on the bench” to litigate a possible contested election (a scenario that didn’t seem to worry him as the 2016 election approached).

McConnell argued that voters gave the GOP a Senate majority in 2014 precisely for the purpose of restricting Obama’s power and subsequently preserved that majority because Republicans pledged to support Trump’s “outstanding appointments to the federal judiciary.”

So, we’re being told there is no need to wait six weeks for the electorate to choose our next president and Senate, because voters gave the sitting president’s party a clear mandate in the 2018 midterms.

Let’s look at the GOP’s 2018 mandate.

In the U.S. House, Republicans lost 40 seats. In Senate races across the country, Democrats received 59 percent of the vote, to only 39 percent for Republicans — a difference of 18 million votes.

Republicans maintained their Senate majority not because they received a mandate from voters, but simply because of a fluke in election scheduling. In 2018, 26 of the 35 Senate seats up for election were controlled by Democrats. Ten of those seats were in states won by Trump in 2016.

Any fair reading of the 2018 midterms would say that the GOP, by only gaining two Senate seats with a map so stacked in their favor, actually received a rebuke, not a mandate, from voters.

Nonetheless, Senate Republicans insist that history is on their side.

“What we’re proposing is completely consistent with the precedent,” said U.S. Sen. Lamar Alexander, R-Tennessee.

Of course, that depends on what precedent you choose.

Let’s try this one: Since 1900, the latest that any Supreme Court justice has been nominated and confirmed in a presidential election year has been in July.

Here’s another one: Garland, Obama’s 2016 pick, is the only Supreme Court nominee since 1853 (other than those whose nominations were withdrawn by presidents) who never received even a Senate confirmation hearing.

“That was really strange,” said Al Kauffman, St. Mary’s University School of Law professor, about McConnell’s 2016 move. “I didn’t think it was a precedent, and I was against that concept.”

I would respect this cynical exercise more if Senate Republicans were honest about what’s happening here.

In 2016, Republicans had the power to block Obama’s pick. They used that power.

Right now, Trump has the power to nominate a justice and Senate Republicans have the power to confirm that selection. They sense that Trump is likely to get voted out in November, and they plan to use their power while they still have it.

It’s not about respecting precedent or honoring the will of the voters. It’s the might-makes-right principle of governing.

Steven Senne / Associated Press A woman sits in front of a memorial to U.S. Supreme Court Justice Ruth Bader Ginsburg on Tuesday outside the Harvard Law School library in Cambridge, Mass.