By David Harsanyi
Saturday, September 19, 2020
Republicans have every right to fill the vacancy left by
Ruth Bader Ginsburg on the Supreme Court. Please save your irate emails
accusing me of hypocrisy, because I have never believed or advocated for the
“Biden Rule” or the “McConnell Rule” or any other fantastical “rule” regulating
the confirmation process, other than the prescribed constitutional method.
In March 2016,
in the heat of the Merrick Garland debate, I argued that “the Republicans’
claim that the ‘people’ should decide the nominee is kind of a silly
formulation,” and the best argument for denying Barack Obama another seat on
the court was to stop him from transforming it into a post-constitutional
institution that displaces law with “empathy” and ever-changing progressive
conceptions of justice.
For a decade, the conventional wisdom said that the GOP’s
“obstructionism” — by which liberals meant completely legitimate governance
that didn’t acquiesce to Obama’s wishes — was going to sink the party.
Conventional wisdom was wrong in the elections held during the Obama
presidency. It was wrong in 2016.
The Garland debate did not sink Republicans, who held the
Senate and won the presidency. In fact, one of the central promises the GOP
relied on to procure those victories — especially among Evangelical voters —
was that they would nominate and confirm originalist justices to the Supreme
Court. If Donald Trump and Mitch McConnell end up installing replacements for
Antonin Scalia, Anthony Kennedy, and Ruth Bader Ginsburg . . . well, “but
Gorsuch,” indeed.
McConnell had no constitutional obligation to take up
Obama’s Garland nomination in 2016, and he has no obligation to wait for 2021
to vote on the next appointment. There is no constitutional crisis. There is
only now a faction of left-wing partisans who are threatening to weaken and
pack courts because they didn’t get their way.
Guess what? It was the Democrats who demanded that the
GOP ignore the “Biden rule” when it wasn’t convenient for them. It was
Democrats who blew up the judicial filibuster. It was Democrats who argued
that Trump shouldn’t be allowed to have any nominees. It was Chuck
Schumer who argued that Democrats should “reverse the
presumption of confirmation” for now-beloved George W. Bush in his second term.
It was Democrats who engaged in an authoritarian-style witch-hunt against Brett
Kavanaugh in an effort to delegitimize the court. Democrats care about as much
about precedents as do “liberal” Supreme Court justices.
Now, I don’t think a single person in American politics
actually cares about the “Biden rule,” either. Even if they did, however, the
precedent doesn’t
apply in this case. Biden argued that nominations shouldn’t be taken up
during presidential-election years when Senate and presidency are held by
different parties. Trump isn’t a lame-duck president; he’s running for
reelection. But let’s concede for the sake of argument that McConnell is a
massive hypocrite. Then, it’s fair to say, so are all the pols who accused
McConnell “stealing” the Garland seat.
Joe Biden now says that “voters should pick a President,
and that President should select a successor to Justice Ginsburg.” (They did.
They picked Trump.) In March of 2016, however, Biden wrote in the New York
Times that the Senate had a “duty” to confirm justices:
In every instance we adhered to the
process explicitly laid out in the Constitution: The president has the
constitutional duty to nominate; the Senate has the constitutional obligation
to provide advice and consent. It is written plainly in the Constitution that
both presidents and senators swear an oath to uphold and defend.
Is Biden saying that McConnell should ignore his sacred
constitutional duty?
Biden knew then, as he knows now, that there’s no
constitutional duty, nor is there any precedent, either prohibiting or
requiring Republicans to fill a vacancy.
Nor is there any prohibition (as nearly every Democrat
has already argued) against “rushing” such a nomination. Three Supreme Court
justices have been confirmed with less than 45 days remaining in a term. As my
colleague Dan McLaughlin points
out in meticulous historical detail, every real norm points to the
Republicans’ filling the vacancy.
Of course, Democrats and the media are going to again
warn that Roe. v. Wade hangs in the balance. (I wish!) It’s highly
unlikely that a John Roberts–led court would ever overturn Roe. Then
again, for conservatives a debate might provide a good window to remind voters
about the Democrats’ extremely unpopular position on abortion — on demand and
state-funded until the ninth month.
And all the same people who advised Republicans against
refusing a Garland confirmation will again warn that the party is engaged in
political suicide. There’s no knowing how these fights will play out. But are
moderate voters, or Republicans on the fence about Trump, really going to be
happy to hear Democrats threatening to blow up the system? Maybe a fight over
the future of the Court will remind many conservatives what’s at stake beyond
Trump. Let Democrats make their arguments against women such as Amy Coney
Barrett or Barbara Lagoa, whom Trump is reportedly leaning towards nominating.
Then again, even if Trump loses in November, you can be
confident that keeping his promise to appoint constitutionalists to the
nation’s top court won’t be among the top 1,000 reasons why.
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