Why Not Make Democrats Angry?

S ome of the Right’s leading thinkers, people I hold in the highest esteem, say circumstances are so unusual right now that the president and the Senate should do something other than what they ordinarily would do when a Supreme Court vacancy occurs: nominate and consider a replacement for Justice Ruth Bader Ginsburg. When Jonah Goldberg, David French, and (especially) George Will talk, I listen. All three are in agreement that the Republicans should give the Democrats a fighting shot to derail President Trump’s nominee. What they are calling for sounds to me like entering the bottom of the ninth with a four-run lead and intentionally walking the first three batters to even out the odds.

The Republicans have the authority to seat Trump’s nominee. French calls this state of affairs “Machiavellian simplicity,” Will calls it the “cold logic of formal powers,” and Goldberg calls it “the doctrine of ‘do whatever you can get away with.’” I call it continuing with the way things have always been done. Twenty-nine times in American history there’s been a SCOTUS vacancy in an election year, and 29 times the president has nominated someone to fill it. Senators usually reject those nominees if the Senate and White House are controlled by different parties, as was the case in 2016, and nearly always confirm them if the two are controlled by the same party.

So why is this time different? I gather that Will finds the character of President Trump to be so reprehensible that he believes Trump should not be granted the privilege of seating another justice, even one Will would deem a superb choice if it had been made by, say, President George W. Bush. Will, French, and Goldberg are also bothered by what they see as the hypocrisy of several Republican senators on the question of whether nominees should be confirmed in the final year of a presidential administration. But hypocrisy isn’t a legal or constitutional matter; it’s a character issue, and thus a political matter. There is no anti-hypocrisy clause in the Constitution. Lawmakers are free to vote down sin one year and support it the next. (Indeed, Republican lawmakers who crack down on spending when a Democrat is president but open up the coffers when a Republican is in the Oval Office have a long history of doing just this. It would be intellectually consistent, but unwise, of them to declare that nobody should fret about overspending. But because they are hypocrites, they act wisely at least some of the time.)

If voters feel that Lindsey Graham and Mitch McConnell are hypocrites, they can complain about it, and work to bounce both men from the Senate this November. I suspect the public understands that, whatever nonpartisan principles anyone felt badgered into declaring in 2016, the reality is that Graham and McConnell and every other senator are partisans, and so they act accordingly. There would have been no shame in any Republican senator’s stating, in 2016, “I do not want Merrick Garland confirmed, or even allowed a vote, because I think his judicial philosophy is wrong.” Which happened to be the truth.

French has a long record of worrying about how Washington’s political disagreements damage us as a people, so he sees hypocrisy as throwing kerosene on a forest fire: “When politicians’ words mean nothing – when only partisan interests prevail – it damages our social and cultural fabric. It deepens public anger and mistrust.” His suggested cure is for the Senate to put off the vote until after the election to give the Democrats a chance to win the presidency, and should they do so he thinks the Senate should leave the seat open for Biden to fill it. Otherwise, French worries, Democrats might proceed with a court-packing scheme and thereby upend the 150-year-old norm of having nine justices.

I think French and the others massively overestimate the odds that any such scheme would succeed; Biden himself opposed it just one year ago, correctly pointing out that if one party does it, the next party will follow suit at the earliest opportunity, which would turn the Supreme Court into a plaything of whatever party is in power and the United States into a banana republic. It’s a fringe idea that didn’t work for Franklin Roosevelt in 1937, when his party commanded huge majorities in Congress, and is now being discussed only by Democratic Party extremists, far-left columnists and . . . certain conservative columnists who wish to restrain Senate Republicans from acting in accordance with their constitutional powers.

The real issue with filling the Ginsburg’s seat with a conservative, the reason even some on the right are reluctant to proceed full speed ahead, is this: We know that doing so would make Democrats really angry. I don’t think this is a convincing argument. Temper tantrums shouldn’t be rewarded, and there’s more than one side’s anger to worry about here: The Right would be equally furious if McConnell held the seat open for Biden. How badly would it tear the fabric of America if, having voted for 53 Republican senators and a Republican president, the electorate learned that those votes were to be nullified because Lindsey Graham and Marco Rubio made dumb statements to the press in 2016?

Should Trump’s pick be seated, Republican presidents will have chosen 15 of the last 19 Supreme Court justices. The Supreme Court should have been restored to a constitutionalist governing philosophy a long time ago. Filling the vacancy in the next six weeks might finally do the trick. If Democrats dislike that, they have a lot of explaining to do.