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Supreme Court Politics

To fill or not to fill, what the Senate treatment of the Scalia vacancy teaches us about RBG

2016 versus 2020

Those of us who of a certain age who watch or teach politics earnestly still have the memory of Merrick Garland, Obama’s non-confirmed Supreme Court appointee fresh in our minds. For those who tuned into politics more fervently for and after the 2016 election, there is probably some understanding of how and why Garland didn’t have his hearings and Obama’s pick was denied even the basic duty of the Senate to advise and consent when a vacancy on the court occurs. But for the younger, newer participants in politics, Merrick Garland is nothing more than a trivia answer in a really nerdy bar pub scene and the story of how the Senate (and the House) approached the vacancy after the passing of Justice Antonin Scalia.

Collection of the Supreme Court of the United States/Dey Street Books

Living through an event is different than hearing about an event, in an attempt to bridge the experiential to hearsay gap, below I’ll present the words the very senators in power when Antonin Scalia died used to describe and defend their approach to not considering or confirming a new justice. I prioritize the words of Senators who were in power in 2016 and remain in power today, but for curious readers I have included links to texts of other official congress to constituents messages sent via e-newsletter at the bottom.

For starters, Scalia died 11 months before the 2016 election on February 13. Ruth Bader Ginsburg, our most recently passed justice left this earth yesterday, a mere 46 days before the 2020 election. On average, it takes 65–75 days from start to finish for a president to nominate a justice, the Senate judiciary committee to hold hearings and question the nominee, and the full Senate to vote on the nominee.

In 2016, 6 days after Scalia’s death, Senators Mitch McConnell (R-KY) and Chuck Grassley (R-IA) wrote at op-ed for the Washington Post arguing that the “American people” rather than then President Obama ought to decide who the next Justice would be by voting for a new president 9 months from then,

Finding the right person to take the seat he occupied will clearly be a monumental task.It may be a consequential challenge, but we think it’s one the American people are more than equipped to tackle.

Rarely does a Supreme Court vacancy occur in the final year of a presidential term, and the Senate has not confirmed a nominee to fill a vacancy arising in such circumstances for the better part of a century. So the American people have a particular opportunity now to make their voice heard in the selection of Scalia’s successor as they participate in the process to select their next president — as they decide who they trust to both lead the country and nominate the next Supreme Court justice.

From Senator McConnell’s official e-newsletter communications

Senator Roger Wicker (R-MS) wrote to constituents with a similar set of arguments. Senator Ben Sasse (R-NE) wrestled with the obligations of the Senate, but concluded that the orientation of president gave cover for not considering a nominee,

The Constitution does prescribe that the legislature provide “advice and consent” on the executive branch’s nominees to the Supreme Court. While there are important precedent arguments about election year vacancies, conservatives should also make the principled case for what is at stake in this moment with a post-constitutional President.

Senator John Boozeman (R-AR) stated that because of his belief that the “American people” ought to have a say he would flat out oppose any Obama nominee,

The American people should have a voice in who is the next Supreme Court Justice with their vote in the next presidential election. For that reason, I will oppose any Supreme Court nominee that President Obama sends to the Senate.

So what has changed since 2016 to now? A ton. But what has changed in the arguments forwarded in 2016 versus those that are likely to be used in the coming days? Not a ton. The “American people” at least in the way Senator McConnell thinks of us ought not be considered any less competent than we were in 2016, so if his argument is now that the Senate ought to rush to confirm, he’s either saying (1) the people are dumber now than they were in 2016, (2) the people might not pick his guy in the upcoming election, and so they must be circumvented, (3) he never believed any of that and just used all he could to stymie Obama up to and including false belief in the wisdom of the “American people”, or (4) any of host of things in his internal mental processes that can be squared politically, but not logically or consistently.

Something that I anticipate McConnell and colleagues to argue is that a first term presidency is different than a second term presidency, and that those in their first term ought to have more leeway to nominate justices even late in the game. This is at least cover for what would be outright hypocrisy otherwise. The next 45 days were going to be full of hard and ugly politics without throwing in a senate fight about the Supreme Court.

Justice Ruth Bader Ginsburg was a trailblazer for gender equality. Her significance to US law in terms of women’s rights, reproductive rights, anti-discrimination, and workplace fairness are immeasurable. She was willing to compromise as well as dissent. Her loss is staggering for many. The 100 people in a Senate have a lot to consider over the next few weeks, and we the people have 469 federal elections to decide over that same time period.

Additional Quotes

Members of The House (in 2016 and 2020)

Representative Paul Gosar Feb. 14, 2016.

Representative Phil Roe Feb. 20, 2016

Representative Jason Smith Feb 20, 2016

Representative Brian Babin Feb. 21, 2016

Representative Patrick McHenry Feb. 21, 2016

Representative Lynn Jenkins Feb. 21, 2016

Representative Buddy Carter Feb. 25, 2016

Representative Barry Loudermilk Feb. 26, 2016

Members of the Senate and House (in 2016 but not 2020)

Senator Dan Coats — February 19, 2016

Senator Orrin Hatch — February 19, 2016

Senator Bob Corker — February 19, 2016

Senator Kelly Ayotte — February 19, 2016

Representative Mike Pompeo — February 22, 2016

Representative Tim Huelskamp February 15, 2016

Representative Leonard Lance — February 16, 2016

Representative Renee Ellmers — February 21, 2016

“President Obama has vowed to uphold his constitutional obligation to nominate a successor to fill the vacancy on the Court; however, shortly after Justice Scalia’s death, Senate Majority Leader Mitch McConnell, said in a statement that the “vacancy should not be filled until we have a new president.” Other Senate Republicans have supported McConnell’s plan to refrain from confirming a new Justice until after the election.” — Randy Forbes (R-VA) Feb 18, 2016

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Lindsey Cormack

Lindsey Cormack

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I am an associate professor of political science and run www.dcinbox.com. I teach at Stevens Institute of Technology and reside on the Upper East Side