As the shock of Ruth Bader Ginsburg’s death gave way to incredulity and alarm about the political situation she’d left behind, Democrats—especially Democrats in the Senate—grabbed the first solid-looking thing they could grab: the principle that it was too close to the election for President Donald Trump and the Republican Senate majority to fill her seat. The people should decide.
Senate Majority Leader Mitch McConnell, who had promoted exactly that message in 2016, promptly rejected it. This was outrageous, but it was easy in the heat of the moment to lose track of exactly what was outrageous about it. Barack Obama, in a Medium post, tried and failed to explain what was wrong:
Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.
A basic principle of the law—and of everyday fairness—is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard.
Obama is a trained law professor and an eloquent rhetorician, but he could not make a coherent case. Four and a half years ago, Republicans invented a principle. The rule of law requires consistency. Therefore, he is calling on Republicans to apply this principle, which did not exist five years ago.
McConnell, meanwhile—as the inventor of the principle—simply invented a new principle: that it was fine to fill a vacant seat in an election year if the presidency and the Senate were both controlled by the same party. In this new formulation, the question for voters in an election year is simply and only how to resolve the parties’ disagreement when the president and the Senate majority are in opposition. On anything else, the voters have no say.
It was nonsense, but so was the original rule. Yet somehow the Democrats found themselves speaking up in defense of the 2016 Mitch McConnell Rule, against the 2020 Mitch McConnell Rule—claiming that the earlier rule was implicated in “the fundamental workings of our democracy”!—even though both rules were made up strictly and exclusively to serve the interests of Mitch McConnell.
There is no rule that says a president can’t appoint a Supreme Court justice in an election year. There should not be such a rule. Presidents are elected for four years, and they have the power to name new judges for the duration of their terms. That is the rule, and it is the rule that Mitch McConnell broke more than four years ago, in the course of making up his new fake rules.
What Obama is really objecting to, and what he should have objected to directly and strenuously at the time, is that McConnell stole the final year of Obama’s presidency. The voters chose in 2012 to give Obama the authority and duties of the president until January 2017. Antonin Scalia died in February 2016. But Mitch McConnell saw the chance to overrule the voters and arrogate the president’s nominating power—not just to use his majority as leverage to force the president to name a moderate judicial candidate (which Obama, being Obama, tried to do anyway), or to review and reject a nominee, but to refuse the act of nomination altogether.
At that moment, the rules and principles about how members of the Supreme Court are chosen ceased to apply. McConnell had changed them unilaterally. And the Republican Party liked the changes; the much-mourned noble statesman John McCain went so far as to propose an even more expansive power grab, in which he would blockade a potential President Hillary Clinton’s nominees for the entire length of her term, holding the court to a maximum of eight members indefinitely.
These have been the actual workings of what Obama rather wishfully called “our democracy.” What’s wrong with Donald Trump plotting to name his third Supreme Court justice is not that he is doing it in an election year, nor that it violates the consistency with which our rules ought to be applied. It’s that thanks to McConnell’s ruthlessness and shamelessness, Trump got to pick justices in a five-year window for his four-year term.
The “legitimacy of our courts” that Obama invoked was gone the moment Neil Gorsuch presented himself to the Senate for confirmation. The challenge for the Democrats isn’t to fight to preserve and extend a temporary and fictitious procedural norm from four years ago. It’s to seize back that stolen year, and that stolen seat, and control of the entire court. That, not any principle, is what Mitch McConnell was fighting for in 2016, and it’s the only thing worth copying from him now.
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