Sort of a continuation of this post…
It’s hideously hypocritical of the Republican majority in the Senate to even consider holding hearings or voting on a Supreme Court nominee in the next six weeks considering their position in 2016 on the Garland nomination. But is it illegal? Of course not.
Their position then was that the “American people” should get to decide, especially since President Obama wasn’t going to nominate someone they’d approve of. So they decided to wait, hoping that a Republican would win the presidency that November (and they ended up with Donald Trump, who is only a nominal “Republican” by historical standards, but who has been very, very good in the judicial nomination area for them).
I read this Twitter thread by Nate Cohn of The New York Times yesterday and I had to agree with him. I don’t like McConnell’s hypocrisy (and I’m sure he’s terribly wounded by my disapproval), but it would be legal for them to confirm Trump’s nominee if they have the votes to do so.
We don’t like being lied to, which is what McConnell and his caucus are doing, but ultimately they control the Senate, there’s a Republican president who will nominate someone they want to confirm, and it’s within their authority to do that. It’s not fair, it’s stupid and petty and potentially will cause more damage to our overall perception of the courts specifically and government in general, but they are legally able to do this.
The question, then, is what are Democrats willing to do if they find themselves in control of the House, the Senate, and the presidency in January (and assuming that the current administration is willing to leave peacefully). It’s not certain, of course, but it’s possible. If that happens, are they willing to govern in the same manner, or will they be constrained by “fairness?”
Matthew Yglesias responded to Cohn with the following thread:
All of those things would be legal to pass, just like confirming Trump’s Supreme Court nominee before the election or during the lame duck session. Some of them, such as expanding the number of Supreme Court justices (there’s nothing in the Constitution that says how many people should be on the court), are being discussed with the hope that the threat of doing that might dissuade the Republicans from moving ahead with replacing Ruth Bader Ginsburg. Don’t hold your breath; this is the moment Mitch McConnell has been waiting for for nearly four years. He’s not about to let it pass.
My concern is that, even if the Democrats find themselves in the majority in both houses of Congress at the start of 2021, they’ll be unable to work together to accomplish those changes. Obama had Democratic majorities in both the House and the Senate, yet was unable to get several initiatives passed, partially due to the Republicans’ ability to filibuster in the Senate (hence Yglesias’ suggestion above), but also due to failures for Democratic factions to agree with each other. And you may have noticed there are some major differences of political opinion among Democrats going into the election.
But it’s been scorched earth, zero sum politics from the Republicans for the last twelve years. Time to play the same game. After all, them’s the rules!