When I first learned of Senate Majority Leader Mitch McConnell’s plan to immediately confirm a new justice to replace the late Justice Ruth Bader Ginsburg, I admit I was bothered by what seemed a contradiction. After all, just four years ago, Leader McConnell led the Republican-controlled Senate in declining to consider President Obama’s nominee, Merrick Garland, for the reason that the next president should make the appointment. That was ten months prior to the election, and now, with less than two months from the 2020 election, Leader McConnell was calling on the Senate to take up President Trump’s nomination. To be fair, politicians from the other side of the aisle faced the same apparent dilemma, having fiercely urged confirmation in 2016 while now strongly opposing it, arguing that it is much closer to the election this time around. Are they all just flip-floppers and hypocrites? We know there is no shortage of hypocrisy in politics (gasp).
Hypocritical or not, to the extent representatives from either side frame this as an election-timing issue, I believe they are getting it wrong. Proximity to an election is, as we are now seeing, a subjective standard, and it has no support in the Constitution. And, while Republican leaders’ assertion in 2016 that “the next president should make the appointment” is interpreted by some as an election-timing argument, Republicans argue there is an objective basis for their position, pointing to an important distinction between 2016 and 2020.
Specifically, Republican leaders argue that the White House and the Senate were controlled by opposing parties in 2016, while they are now controlled by the same party. As the argument goes, the Republican-held Senate was entitled to reject the Democrat president’s nominee in 2016, just as the Republican-held Senate is entitled to move forward with the Republican president’s nominee in 2020 (notwithstanding the timing of either election). From my perspective, this at least mitigates the appearance of extreme hypocrisy, but what is actually important is that this assessment is supported by the Constitution, by precedent, and by application of simple logic. Here’s my case:
- As for precedent, there have been 29 vacancies during presidential election years in U.S. history, and presidents have nominated someone for that vacancy all 29 times. In 19 of those instances, the president and the Senate were both controlled by the same party, and, in 17 of those 19 times, the Senate confirmed those nominees.
- The Constitution expressly obligates the president to make the appointment of a Supreme Court justice upon a vacancy on the Court and requires the Senate’s consent for confirmation.
- A president’s authority is not diminished during his fourth year in office (as the late Justice Ginsburg herself famously, and correctly, stated).
- A Supreme Court with 8 justices runs the risk of a tie and, thus, the inability to effectively carry out its purpose.
In short, when Americans have voted to elect a president and a majority of the Senate of the same political party, the people have fully empowered their officials, including to confirm (if they choose) the president’s judicial nominees. The people are entitled to that process throughout the duration of their elected officials’ respective terms.
In the opposite scenario, where the people who have elected the president have failed to elect a Senate controlled by the same party—or, stated in the converse, the opposing party has succeeded in limiting that president’s power by voting to deny his party control of the Senate—then the people have failed to fully empower the president. In that case, the ability to secure confirmation of judicial nominees is subject to more opposition and greater challenges.
In the present case, the American people have spoken by electing both a Republican president and a Republican Senate. The people are entitled to have their elected officials represent their interests by carrying out their obligations throughout their entire respective terms.