Jurisprudence

Senate Republicans Defend Themselves Against Their Own Arguments From 2016

Committee chairman U.S. Sen. Lindsey Graham listens during Supreme Court Justice nominee Judge Amy Coney Barrett's Senate Judiciary Committee confirmation hearing for Supreme Court Justice in the Hart Senate Office Building on October 12, 2020 in Washington, DC.
Opening day of Calvinball season. Erin Schaff-Pool/Getty Images

On Monday, the Senate Judiciary Committee began hearings on President Donald Trump’s nomination of Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg.

Since announcing that they would go ahead with the nomination within an hour of Ginsburg’s death, it’s been clear that Senate Republicans intend to ignore the precedent they set in 2016 when they refused to even grant a hearing to Judge Merrick Garland after his nomination by President Barack Obama to replace Justice Antonin Scalia. At the time of the Garland nomination, Republicans sold their efforts to hold the seat open as a decision to “let the American people have a voice.”

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Now, with voting already begun and a little more than three weeks left to go to Election Day, how have Republicans on the Judiciary Committee justified lying to voters in 2016 about their intentions for the seat and going back on their own standard? During Monday’s hearings we got the most direct answer: By pretending it never happened and creating an alternate history of 2016, ignoring the shameless broken promise altogether, or blaming Democrats for alleged misdeeds either past or future.

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Here are the various tacks Republican senators took to justify their shameless theft of a Supreme Court seat and their lies to the American public about it.

“There’s nothing unconstitutional about this process.”

Multiple senators made the claim that what Republicans are doing in 2020 is in line with past Supreme Court nominations in an election year when the same party controls the Senate and the White House.

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Judiciary Committee Chairman Lindsey Graham, up for re-election in South Carolina and having previously been adamant that he would not fill a seat in an election year if it came open under a Republican president, leaned into this approach.

“There’s nothing unconstitutional about this process,” Graham said during his opening remarks. “The bottom line here is that the Senate is doing its duty constitutionally.” He and Sens. Ted Cruz and Mike Crapo each also cited statistics about it being rare for nominees to be confirmed by an opposition party in an election year and common for them to be confirmed by the president’s own party.

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As everyone in the committee room knew very well, this was not the standard Graham set in 2016 when he said categorically that the reason for holding the Garland nomination open was that the people needed to choose, with no reference to which party held the White House or the Senate: “As I have repeatedly stated, the election cycle is well underway, and the precedent of the Senate is not to confirm a nominee at this stage in the process. I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president.”

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Justice Ginsburg would have wanted it this way.

Another line taken by Graham was that Ginsburg herself would have wanted the seat filled. “The bottom line is Justice Ginsburg when asked about this several years ago, said that a president serves four years, not three,” Graham claimed.

This was based on how back in 2016 when the Garland blockade was underway, Ginsburg opined that Obama had every right to fill the seat at the time: “The president is elected for four years not three years, so the power he has in year three continues into year four.”

Now that Graham helped to steal that final year from Obama’s second term to make it functionally a three-year term, he wants to use the Ginsburg principle to say that Trump should complete his fifth year of appointments. As should be—but isn’t—needless to say, Ginsburg reportedly expressed that her “most fervent” dying wish was for the Senate to hold to the standard Graham actually upheld four years ago, not to suddenly switch to the standard Ginsburg had wanted him to uphold at the time but which he ignored.

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Democrats are threatening to retaliate.

Multiple Republicans used the possibility that Democrats might retaliate in the future by adding seats to the Supreme Court—which Democrats themselves didn’t even discuss—to justify their own blatant power grab today. “Lately the left is threatening to pack the Supreme Court in retaliation for this confirmation process,” Grassley said. “Republicans are following the constitution and the precedent. It seems Democrats would rather just ignore both.”

The other Iowan on the panel, Sen. Joni Ernst, locked in a bitter election challenge, went with the same approach, saying “I think it was just the other day that Vice President Joe Biden told the American people they don’t deserve to know whether he is going to pack the court.”

Like time-traveling heroes, the committee Republicans are preemptively retaliating for what a future Democratic majority might do about their gross (and unpopular) abuse of power, so as to vindicate that abuse of power.

For his part, Sen. John Cornyn took the novel tack of combining this justification with an argument that before she died and Republicans ignored her dying wish not to fill her seat, Ginsburg opposed court packing. “They’ve said that if this confirmation proceeds they intend to pack the court with more justices, who will turn the Supreme Court into a genuine second legislative body,” the senator from Texas said. “We heard what Justice Ginsburg had to say about that, that would be a terrible mistake.” We don’t know what Ginsburg would say now that Cornyn is ignoring her dying wish, but I have a guess.

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Democrats are the ones politicizing the courts.

Sen. Mike Lee, fresh out of quarantine following his infection with COVID-19, led the charge on this line. Lee blamed Democrats for “tactics of creating fear and uncertainty and doubt” that have led to protests against Barrett’s nomination. “We have allowed for the politicization of the one branch of the federal government that is not political,” he said. “We can turn that around.”

Here’s what Lee said in 2016 when Republicans politicized the courts by refusing to hold a hearing for the nominee of an opposing party: “We think that the American people need a chance to weigh in on this issue, on who will fill that seat. They’ll have that chance this November, and they ought to have that chance.”

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Another version of this claim that the other side was at fault was put forward by Sen. Ben Sasse, who pined for a bygone era when nominees were supported by both sides of the aisle. “I think some of what happened between then and now is we decided to forget what civics are and let politics swallow everything,” Sasse said. Speaking of forgetting things: In March 2016, Sasse declared that Obama’s Supreme Court nominee would be “dead on arrival.”

This is standard operating procedure, as was what happened in 2016.

Idaho’s Crapo spent most of his time cycling through the various justifications for his and his party’s lies and reversals about filling an election-year seat, before landing on a justification of next level chutzpah: Everything is actually being done by the book, as it was in 2016.

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“Much like when the Senate exercised its constitutional right fully consistent with precedent in 2016 not to fill the vacancy when there was divided government, the Senate is today exercising its duty to move forward with processing this nomination just like the vast majority of Senates in the past have done,” he said. “Any claim that this process is unusual or that it violates the clear precedent of the Senate is simply false.”

Here was Crapo’s justification for blocking Garland in 2016: “The next Supreme Court justice will make decisions that affect every American and shape our nation’s legal landscape for decades. Therefore, the current Supreme Court vacancy should be filled by an individual nominated by the next President of the United States.”

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Dianne Feinstein made us do it!

The last and most distracting tactic used by Republican senators to justify their reversal of four years ago was to blame the ranking Democrat on the Judiciary Committee, Sen. Dianne Feinstein, for how she handled the Brett Kavanaugh hearings in 2018.

“Many of my colleagues have wasted a lot of their time complaining [about] the process, in an effort to delay and obstruct a legitimate constitutionally sound confirmation hearing,” said Sen. Marsha Blackburn of Tennessee. “Let’s not forget it was the Democrats who took an axe to process in 2018 when they dropped last-minute unsubstantiated sexual assault allegations against Justice Kavanaugh. … They turned that confirmation into a circus and on that note it is hard to take seriously their complaints about moving too quickly.”

Louisiana Sen. John Kennedy took a similar approach, saying: “I understand this thing can turn sour real fast. We all watched the hearings for Justice Kavanaugh. It was a freak show. It looked like the cantina bar scene out of Star Wars.”

It’s not clear which part of the Kavanaugh hearings—in which Christine Blasey Ford told the committee that Kavanaugh had sexually assaulted her, and Republicans refused to call any additional witnesses who might affirm or rebut her solitary testimony—would have struck Kennedy as resembling a barroom crowded with belligerent aliens. But if the committee majority could accurately represent past events, they wouldn’t have held Monday’s hearing at all.

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