Trump’s latest Supreme Court spin unmasks the GOP’s vile game

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Trump’s latest Supreme Court spin unmasks the GOP’s vile game

How GOP senators responded when shown their past remarks on Supreme Court nominations

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Republican senators were presented with their past comments on Supreme Court nominations as they vowed to confirm a new justice. (Zach Purser Brown/The Washington Post)

Opinion by 

Greg Sargent

Columnist

September 22, 2020 at 12:17 a.m. GMT+9

Now that Senate Majority Leader Mitch McConnell (R-Ky.) will forge ahead with a vote on President Trump’s nominee to replace Ruth Bader Ginsburg, this is being widely treated as a story about “hypocrisy.” This charge is often hurled at politicians, but in this case, it lacks the true clarifying power this situation demands.

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Instead, those seeking to bear faithful witness to this moment will have to be a lot more forthright about what this affair really means, which is this: Whenever Trump and Republicans view it as something they can get away with, Democratic electoral victories can and must be treated as subject to nullification at will, as outcomes that fundamentally just don’t confer obligations on them.

This isn’t how this is being widely depicted. Whether it’s Democrats blasting GOP “hypocrisy” or news outlets reporting on the Senate majority leader’s “stark turnabout,” the basic story has been that McConnell is violating his stated principles by holding a vote on a nominee during a presidential election year, after he refused Merrick Garland a hearing in 2016.

Live updates on Ruth Bader Ginsburg’s death

But this is about something far more fundamental than McConnell’s fealty to consistency. It’s about the contempt that McConnell and Trump hold for millions and millions of American voters. It’s about their cavalier willingness to treat all those voters’ political preferences as having no legitimate purchase at all — that is, when they vote for Democrats.

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Trump himself laid this bare on “Fox and Friends” on Monday morning, when he said this: “Losing elections, that has consequences. That means the other side gets to pick Supreme Court justices.”

In so doing, Trump inadvertently dramatized the real stakes here: When Republicans lost the 2012 election to Barack Obama, who won by a popular majority, it did not end up having these consequences: Obama’s nominee was denied any hearing.

But, given that Democrats lost the 2016 presidential election — in the electoral college, while winning the popular vote — it now must have those very same consequences.

McConnell’s stated motives

It’s important to remember that McConnell denied Garland a hearing by arguing that it would be unfair to voters to allow a president to pick a Supreme Court justice during a presidential election year, before the voters got their say on whether that president should remain in office.

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As McConnell defined the principle in 2016, “The American people are choosing their next president, and their next president should pick this Supreme Court nominee.”

So why shouldn’t “their next president” pick this Supreme Court nominee? Trump and Republicans have come up with a new way to justify this: They claim the key difference this time is that the same party controls both the Senate and the White House.

As McConnell put it: “Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.” Note the addition of the words “opposite-party.”

But this argument falls apart under scrutiny. First, as William Saletan documents, McConnell’s repeated justifications for inaction in 2016 were largely focused on the idea that the American people would be disenfranchised if they didn’t get to choose who nominated the next justice, i.e., the president.

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And so, even if the Senate is controlled by the same party, by McConnell’s own lights it should still be seen as disenfranchising to the American people if the Senate confirms Trump’s nominee rather than letting the American people decide in this election who gets to pick that nominee.

But, suddenly, this solicitude for the American people has vanished. What’s the real difference here? That they might elect a Democrat.

The real game

The real game here is revealed by Sen. Lamar Alexander (R-Tenn.), who declared that the “Constitution gives Senators the power” to confirm nominees, and so “no one should be surprised” if they do it in this case, given that the same party — the GOP — controls both the Senate and the White House.

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This is true. It’s also true that senators have the power not to confirm nominees. But as a justification for what we’re seeing now, this is deeply disingenuous: In Garland’s case, the Senate didn’t merely not confirm him; they didn’t give him a hearing at all. That excused the Senate from having to make a public choice one way or the other.

All Alexander really means is that the Senate should only feel obliged to give nominees a hearing in an election year when they are chosen by a president from the same party. The Senate should feel free to deny a hearing to a nominee from the opposite party simply because it can — even though, by the principle conjured up in 2016, this is unfair to the electorate now picking a president.

But that’s okay, because this time, that electorate is looking likely to pick a Democratic president.

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As usual, it was left to Trump — who has regularly treated the Democratic-controlled House as fundamentally illegitimate, even though it was established by a sizable popular majority — to reveal the true motivating principle here most clearly.

“Obama did not have the Senate,” Trump said on Fox. “When you have the Senate, you can sort of do what you want.”

You can do what you want. There you have it: In 2016, Republicans “wanted” to deny a hearing to a nominee — which they justified by claiming it would be hideously unfair to voters in an election year — simply because he had been chosen by a Democratic president.

Now they “want” to give a quick hearing and vote to a nominee in an election year — even though by their own lights this is hideously unfair to the voters — simply because if not, Ginsburg’s replacement might get chosen by a Democratic president.

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