Consider this mind experiment. It is September 2016. Democrats control the United States Senate, 54-44, with two independents who caucus with the Democrats. In the upcoming election, 24 Democratic seats are in play, versus 10 Republican seats. Therefore, the Democrats’ continued control over the Senate is anything but a foregone conclusion. The same, of course, is true about the presidency.
Now imagine that Supreme Court Justice Clarence Thomas suddenly dies some 50 days before the election, providing President Barack Obama with an opportunity to dramatically redirect the court by replacing a “conservative” justice with a “progressive.”
But NPR’s Supreme Court reporter, Nina Totenberg, reports that, on Thomas’ deathbed, he told a family member, “My fervent wish is that I will not be replaced until a new president is installed.” Citing “the principle of fairness,” Republican Minority Leader Mitch McConnell requests that Obama not submit a successor nominee and that Senate Majority Leader Chuck Schumer not hold confirmation hearings until after the election.
Cue the laughter.
This sounds like a story once told about actor Spencer Tracy. Asked why his name received top billing for “Adam’s Rib” over his frequent co-star, Katharine Hepburn, Tracy replied, “This is a movie, not a (expletive deleted) lifeboat.” This is the Supreme Court, not a suggestion box.
Now, in reality, Justice Ruth Bader Ginsburg just died. The notion that Democrats, if they controlled the White House and the Senate, would not seek to immediately replace her before the election is absolutely, positively hysterical. This is a party whose Senate majority leader, Harry Reid, stood on the floor in the Senate in the thick of Obama’s 2012 race for reelection and knowingly, falsely accused Republican opponent Mitt Romney of not paying taxes for a decade. After retiring from the Senate, Reid admitted he lied. Asked whether he regretted lying about Romney, Reid said, “Well … Romney didn’t win, did he?”
In 2013, Democrats controlled the Senate, and they ended use of the filibuster, a practice allowed for 100 years for purposes of confirmation hearings on all executive branch nominees and for most judicial nominees. At the time, McConnell warned: “The majority leader promised, he promised over and over again, that he wouldn’t break the rules of the Senate in order to change them. If you want to play games and set yet another precedent that you’ll no doubt come to regret, I say to my friends on the other side of the aisle, you’ll regret this — and you may regret it a lot sooner than you think.”
True, in 2016, when Justice Antonin Scalia died, Senate Majority Leader McConnell never gave Obama’s nominee a hearing. Some Republicans pointed to the so-called (Joe) Biden rule that supposedly says Supreme Court nominations should not be considered during a presidential campaign year. But Biden quickly denied such a rule: “So now I hear all this talk about the Biden rule. It’s frankly ridiculous. There is no Biden rule. It doesn’t exist.
There’s only one rule I ever followed on the Judiciary Committee; that was the Constitution’s clear rule of advice and consent. Article 2 of the Constitution clearly states, whenever there is a vacancy in one of the courts created by the Constitution itself, the Supreme Court of the United States, the president shall — not may — the president shall appoint someone to fill the vacancy with the advice and consent of the United States Senate. And advice and consent includes consulting and voting.”
Is there any doubt, had the Democrats controlled the 2016 Senate, this movie turns out differently? Consider the pep talk then-CNN political analyst Roland Martin gave Obama, frustrated over Republican attempts to block his appellate court nominees. In a 2010 article titled “Time for Obama To Go ‘Gangsta’ on GOP,” Martin offered the following advice:
“For me, I’m sick and tired of Democrats having power and being unwilling to use it. I’ve always respected Republicans when they had power because they were willing to use it and maybe apologize later. …
“President (Obama) needs to show his toughness and just do it. Forget the threats. The actions … will continue if President Obama allows them to run roughshod over him. When you’re the top dog, you do what you have to do to govern. …
“Obama’s critics keep blasting him for Chicago-style politics. So, fine. Channel your inner Al Capone and go gangsta against your foes. Let ’em know that if they aren’t with you, they are against you, and will pay the price.”
Finally, here is Ginsburg in 2016 on whether a Supreme Court vacancy should be filled during an election year: “That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year.” A few months later, she said, “Eight is not a good number for a collegial body that sometimes disagrees.”
We agree. Let’s grant her that wish.