One of the reasons Republicans tend to lose in public debates is that, even when they’re on the right side and doing the right thing, they don’t seem willing to defend their actions on the sheer merits. And often when this is the case it comes back to bite you later.
In 2016, the nation faced a near catastrophe when Antonin Scalia died, leaving the prospect of Barack Obama appointing a liberal replacement who would shift the Supreme Court’s ideological balance to the left. Had that happened, unions could still force non-members to pay dues, and Jack Phillips would have had to bake that gay wedding cake, and pro-life pregnancy centers would be forced to give out the phone numbers of abortion clinics.
And President Trump’s travel ban would have been eviscerated by a judiciary that had no power to strike it down, but would have been allowed to do so anyway by a liberal Supreme Court majority that would not care about the law.
This is just the start of the bad things that would have happened. It had to be stopped. And in one of his finest hours, Mitch McConnell stopped it. He refused to even give a hearing to Obama nominee Merrick Garland, let alone a vote. That was the right thing to do. Garland’s ascension to the Court would have been a disaster for the law and for the Constitution, and McConnell couldn’t take the risk that a few weak-kneed Republicans might go wobbly and vote to confirm him. It probably wasn’t fair to Garland, who had a solid legal resume and no personal skeletons, but it wasn’t about that. It was about protecting the rule of law, which Garland would not have done as a member of the Supreme Court.
It’s as simple as that. Garland got spiked because the conservative majority on the Court had to be protected if there was even the slightest chance of doing so. If Hillary had won the election then it might not have been possible to keep a liberal from taking Scalia’s seat, but as long as there was a chance, McConnell had to take it.
It had nothing to do with it being an election year. There was no grand principle or tradition he was upholding. Obama had the constitutional power to make an appointment and acted properly in making one, and there would have been nothing wrong with confirming a good choice, regardless of what year it was. But the Republican Senate also had the right to refuse confirmation, and was correct in doing so because of the impact Garland would have made on the nation’s jurisprudence.
Where McConnell erred was not in the actions he took. Those were correct. He erred, rather, in using the lame excuse that he did all this because it was somehow inappropriate and/or unprecedented to confirm a Supreme Court nominee of an outgoing president in an election year. There was no such principle. He made that up out of thin air. And by doing so, he punted away a perfect opportunity to explain to the American people why blocking Garland was so essential and necessary.
What McConnell should have said was that Senate Republicans had no intention of letting Obama tilt the Court to the left, for all the reasons we conservatives believe in our heart of hearts. He should have made the case to the country that left-wing justices routinely ignore the rule of law and concoct rationales for rulings that merely favor the parties or policy outcomes they prefer. And he should have explained to the public why this is bad for the country even if you sometimes like the policy outcomes such rulings produce – because the judiciary has to remain committed to the law.
Democrats would have responded that it was unfair to presume Garland would do that when he didn’t even have the chance to address the issue in a hearing. But had there been a hearing, Garland would surely have insisted he rules solely on the law. All liberals do. He might have even persuaded the likes of Susan Collins or Cory Gardner to back his confirmation. That would have been a disaster, and the recent history of Democrat-appointed Justices is that they all march in lock-step in the pursuit of rulings that advance liberal policy goals. Garland is very unlikely to have been any different, regardless of what he said in his confirmation hearings, and the country couldn’t take that risk.
McConnell could have won this public debate. Instead, he hid behind an artificial principle that pretended a Supreme Court nomination shouldn’t come from an outgoing president, which opened the field for such claims and is now creating fertile ground for Charles Schumer to pretend a nomination even in the year of a midterm election is out of bounds. Schumer’s not going to win that debate, but McConnell should never have set him up to even have it.
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And some day you will get a situation in which a Republican president has an opening but has to get a nomination through a Democrat Senate. The Democrats likely will not confirm any Republican nominee no matter what – since everything is now war – but McConnell set the precedent of using process excuses, and the Democrats will take it to the next level. It’s what they do.
Meanwhile, even now some conservatives are actually trying to defend the idea that Supreme Court nominations by outgoing presidents in election years are understood to be no good, but that nominations in mid-term election years are just fine, and here’s why, etc.
Nonsense. If the outgoing president in 2016 had been a Republican and he had nominated a conservative Justice, McConnell would have scheduled hearings and held a confirmation vote, and he should have. Everyone knows this. So can we stop pretending this was about anything other than what it was? We couldn’t permit a five-vote liberal majority on the Supreme Court. It would have been a disaster for the country.
What’s so complicated about that and why can’t we just say it?
One of the reasons Republicans tend to lose in public debates is that, even when they’re on the right side and doing the right thing, they don’t seem willing to defend their actions on the sheer merits. And often when this is the case it comes back to bite you later.
In 2016, the nation faced a near catastrophe when Antonin Scalia died, leaving the prospect of Barack Obama appointing a liberal replacement who would shift the Supreme Court’s ideological balance to the left. Had that happened, unions could still force non-members to pay dues, and Jack Phillips would have had to bake that gay wedding cake, and pro-life pregnancy centers would be forced to give out the phone numbers of abortion clinics.
