The passing of Supreme Court Justice Ruth Bader Ginsburg is a loss for the Court and for the nation. Chief Justice John Roberts called her a “jurist of historic stature”, a “cherished colleague”, and “a tireless and resolute champion of justice.” All that she certainly was; while this blog has at times criticized her frequently dissenting opinions, her 27 years on the bench places her among the top 25 longest-serving justices in history, as well as the longest-serving and only second-appointed woman to join the Court.
While her body was yet warm, Senate Majority Leader Mitch McConnell promised to vote on a replacement nominated by President Trump, whose reelection would be decided in fewer than seven weeks — a position seemingly at stark odds with the one he took after Justice Scalia’s sudden passing in 2016. Then, McConnell stated — within an hour of confirmation of the Justice’s passing — that his vacancy should remain “until we have a new president.” He held that line, refusing to hold a vote on then-President Obama’s choice of Merrick Garland to succeed Scalia in order to “give the people a voice in the filling of this vacancy”, despite the fact that more than eleven months remained in Obama’s second term.
Major papers of record (Washington Post, LA Times, New York Times), have opined hypocrisy. Some Democrats are so outraged that they’re calling for court packing, an idea endorsed by House Judiciary Chair Jerry Nadler and backed by many others. But is McConnell actually changing his position on Supreme Court confirmation votes? A careful read of his statements shows that ‘ol Moscow Mitch is not necessarily a hypocrite but rather a shrewdly calculating, hyper-partisan, master rhetorician. Democrats would do well to notice the difference and attempt to follow suit.
WaPo Op-Ed
McConnell’s first written statement on the Scalia replacement question was an op-ed he co-authored in the Washington Post with Iowa Senator Chuck Grassley, then-Chairman of the Senate Judiciary Committee, five days after Scalia’s death. Titled “Democrats shouldn’t rob voters of chance to replace Scalia”, it doubled down on the “particular opportunity” of the rareness of a Supreme Court vacancy occurring in “the final year of a presidential term.” [1] Democrats, they charged, would rather “push through yet another lifetime appointment by a president on his way out the door.”
The main angle of this op-ed though is less about timing and more about explicit partisanship. They quote a floor remark from Minority Leader Harry Reid from 2005 about an appeals court nomination: “Nowhere in [the Constitution] does it say the Senate has a duty to give Presidential nominees a vote.” Two dozen Democrats voted against ending a filibuster on Justice Alito’s nomination vote in 2006. Senator Chuck Schumer, in a 2007 speech to a private organization, supported “reversing the presumption of confirmation” for the rest of Bush’s term, confirming only in “extraordinary circumstances.” [2]
The idea that Democrats are having “amnesiac experiences” now that the shoe is on the other foot is just a warmup though for the final partisan argument: in a “stinging rebuke to this president and his policies,” Americans voted in “a landslide for the opposition party” and handed the Senate to Republicans in 2014. That is why it is the American people, not “a lame-duck president whose priorities and policies they just rejected in the most-recent national election,” who should first weigh in on replacing Scalia [3].
Grover Cleveland and the Biden Rule
By the following week, McConnell’s arguments had crystalized on this explicitly partisan question of who controls which house or chamber. Whereas in the op-ed he wrote that the Senate hadn’t “confirmed a nominee to fill a vacancy arising in [the final year of a presidential term] for the better part of a century”, he began to beat the drum of how “you have to go back to 1888 when Grover Cleveland was in the White House” to see a nominee (emphasis mine) “confirmed by a Senate of the opposite party when the vacancy occurred in a presidential year.” It is in this sense that we must understand McConnell’s repeated use of the term “lame duck,” which by popular usage and even according to the Senate’s own glossary describes the inter-session period following a lost election. For McConnell, Obama became a lame duck in November 2014 when he lost all hope of again presiding over a Senate under Democratic control.
But McConnell also carried on with using Democrats’ own words against them. Most significant was the so-called “Biden rule” extracted from an interview then-Senator Joe Biden gave in June 1992 to the Washington Post following the acrimonious Clarence Thomas nomination. Biden was concerned that any election-year nominee “would become a victim of a power struggle” because scheming Republicans make you either avoid the issue or “disregard the rules” in order to fight them. A gleeful McConnell revisited this interview from the Senate floor; said Biden:
If someone steps down, I would highly recommend the president not name someone, not send a name up. If he {Bush} did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.
Can you imagine dropping a nominee… into that fight, into that cauldron in the middle of a presidential year?
McConnell went on to cite a floor speech Biden gave later that same month about the Democratic-controlled Senate’s hypothetical stonewalling of an election-year vacancy:
Some will criticize such a decision and say it was nothing more than an attempt to save a seat on the court in the hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose in the Senate — to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.
This together with his more general response to Obama’s Biden rule-defying nomination of Merrick Garland in March — “give the people a voice in the filling of this vacancy” — does put McConnell within range of a charge of hypocrisy. Certainly his Senate colleagues were also very straightforward on this: Utah Senator Mike Lee cited “the contentious presidential election already well underway” and how “the court has very ably dealt with temporary absences in the past”; Senator Grassley himself explained that the Senate would be “withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.”
Focus on Divided Government
But McConnell’s own rhetoric carefully spins the Biden rule [4]. His “Get the Facts” explainer calls out a press statement including the Grover Cleveland remark from the same day in 2016 on which he made that floor speech about Biden’s 1992 interview. But the Biden argument is only referenced from later statements more swiftly emphasizing the fact of divided government, like this one from October 2018: “I knew full well based upon what Joe Biden had volunteered in 1992… First, do we have a vacancy? Second, who is in charge of the Senate?”
His succinct statement upon Ginsburg’s death is just as surgical about divided government:
In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.
By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.
It might even be that McConnell partly believes that he’s actually following a Senate tradition that goes back one hundred years. It’s definitely not hard to imagine that he sees little risk of a hypocrisy charge sticking. Either way, this persistent and memorable refrain seems to have the Republicans falling into line regardless of what they may have said in 2016. Those results are the bottom line for Mitch “Leave No Vacancy Behind” McConnell.
The Democrats’ Response
Of course ink is being spilled speculating on whether this can be stopped. House Speaker Nancy Pelosi is so far playing her cards close, telling ABC’s George Stephanopoulos that “we have arrows in our quiver that I’m not about to discuss right now.” Senate Minority Leader Chuck Schumer warned in a conference call shortly after Ginsburg’s death that “nothing is off the table for next year” if McConnell moves forward. This is the polar opposite of McConnell announcing his plans the very day she passed.
Now that Judge Amy Coney Barrett has been nominated, Democrats’ immediate strategy is to focus on the impact to health care her vote might carry: Barrett has criticized Chief Justice John Robert’s surprise vindication of the Affordable Care Act in 2012 [5]. If the goal is to derail confirmation by scaring a few Republicans in the final stretch of their reelection campaigns, that seems doomed: a recent poll from the Kaiser Family Foundation found that more than three quarters of Republicans support a Supreme Court challenge to overturn the ACA and more than two thirds would like to see that challenge prevail. It’s almost like Schumer’s daring Republican senators to confirm!
Probably what’s really going on is a desperate play to electrify undecided voters in swing states to turn out in November. In other words, the Democrats have already given up, admitted that McConnell’s won, and are on the next short term tactical move. Some vague threats about court packing might still animate the far left but they won’t get serious attention next year.
If Democrats really believe that escalating hardball is the right answer, they should study the careful word games McConnell is so skilled at playing and see if they can’t put the Republicans on defense for a change. McConnell’s slimy rhetoric about history and division can be better attacked than just by screeching “hypocrite!” And if Democrats honed their rhetorical skills they might even be capable of some real leadership.
Footnotes
[1] Apparently this isn’t so rare since it happened again at the very next opportunity! Parsing this claim to exclude vacancies appearing in a term’s final year but before that year’s election, this has now happened 16 times in the history of the Court — more than 14% of all 106 vacancies. If that’s less than the roughly one in four cases we’d expect from a random distribution, it’s probably because two thirds of these vacancies arose from the death of a sitting justice. (Three more vacancies opened immediately following an election, all from retirees, and only one under a lame duck president.) Since slightly less than half of all vacancies arose from deaths, we can see that justices tend to prefer not to retire close to a presidential election.
[2] The op-ed, in dropping most of the relevant context, makes this sound like a general policy Schumer wanted to adopt for dealing with Republican presidents. Actually he was reflecting specifically on his experience with cagey Bush appointees with thin written records who were uncooperative at hearings. He proposed reversing the confirmation presumption and refusing to confirm absent extraordinary circumstances for the rest of Bush’s term “and if there is another Republican elected with the same selection criteria… given the track record of this President and the experience of obfuscation at the hearings.” Schumer wanted provably mainstream appointees, presciently warning that “we cannot afford to see… Justice Ginsburg [replaced] by another Alito.”
[3] Of course Obama wasn’t on the ballot in 2014; and of the nine Senate seats Republicans took that election, only three were in states that had ever voted for him (Colorado, Iowa, and Virginia). Given that 2014 featured by far the lowest percentage turnout of any federal election in the 21st century, it’s basically impossible to fairly argue that the American people were in any way unified in rejecting Obama’s policies or in handing the Senate to Republicans. But that this deeply partisan argument was saved for last clearly suggests that McConnell felt it was the strongest.
[4] In fairness, Biden made this relatively easy. “Divided” appears 18 times in the text of the speech, like here:
The use that Presidents Reagan and Bush made of the Supreme Court nominating process in a period of divided Government is without parallel in our Nation’s history. It is this power grab that has unleashed the powerful and diverse forces that have ravaged the confirmation process.
But Biden’s ire was directed throughout solely at the White House, blaming the “collapse of the confirmation process” on the Reagan and Bush administrations’ “ultraright conservative social agenda.” His speech had nothing to do with Senate control, which body Biden said “has historically taken its responsibility seriously.”
[5] Roberts wrote the majority opinion in the landmark 2012 ruling that saved Obamacare, National Federation of Independent Business v. Sebelius. He spent so long writing about how it could not stand under the commerce clause that it seemed like a decision intended to strike the law down. Only in the second half of the long opinion did he pivot to discussing the taxing power, which despite Congress’s best effort to avoid invoking for political reasons while crafting the bill, Roberts reluctantly admitted saved the individual mandate. “The question,” he wrote, “is not whether that is the most natural interpretation of the mandate [that it is a tax], but only whether it is a ‘fairly possible’ one… in order to save [the] statute from unconstitutionality.” In 2017, Judge Barrett wrote in a law review essay that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”