WASHINGTON – MARCH 03: U.S. Supreme Court Justice Ruth Bader Ginsburg smiles during a photo session with photographers at the U.S. Supreme Court March 3, 2006 in Washington DC. (Photo by Mark Wilson/Getty Images)
When U.S. Supreme Court Justice Antonin Scalia died in February 2016, it was early in a presidential election year. As history records, President Barack Obama nominated federal Judge Merrick Garland to replace him. At the time, U.S. Senate Majority Leader Mitch McConnell, R-Ky., stated that the nomination would not be considered.
Later, McConnell amplified the “principle” that he said informed this decision:
“I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.
The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.”
Garland’s nomination was never considered by the Senate.
Now, four years later, with the passing of Justice Ruth Bader Ginsburg weeks before another presidential election, McConnell has announced that the Senate will vote on a nominee to replace her.
McConnell claims that the situations are different because, unlike today, in 2016 the Senate majority and the president were divided between the parties. Only the American people could resolve the difference.
But the truth is much simpler.
McConnell was never going to allow a liberal majority on the Supreme Court if he could stop it. If Hillary Clinton had been elected, he would have stonewalled any nominee from her, thus allowing the Supreme Court to “shrink,” as several Republicans were hinting in 2016.
That is why, in his 2016 statement, McConnell was very careful to avoid promising to approve any Supreme Court nominee from the new president: “The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”
Democrats are furious over McConnell’s dishonesty and the fact that he may have the votes to replace Ginsburg — despite her plea that she not be replaced until after the November election.
Democrats should consider that, as is often the case, dishonesty will have bad consequences for the person who engages in it.
The first bad consequence for McConnell is that going ahead with a vote on a nominee will be highly controversial. That controversy will distract from President Donald Trump’s efforts to turn the election focus to the qualifications of Joe Biden and current threats to law and order.
Trump is behind in the race. The smart political play for him would be to graciously accede to Ginsburg’s wish and take this nomination fight off the table. But Trump has never taken the longer view. He’s expected to announce his pick later this week, after saying the Senate should move without delay to fill the seat.
The second effect of McConnell’s dishonesty is that it will drive up Democratic turnout, move undecideds toward the Democrats and depress Republicans. It may determine the outcome of the election in favor of Biden.
The effect on Democrats is already obvious. Any existing doubts about Biden are now fading into insignificance.
The effect on the undecideds and Republicans is not as obvious but it is there. Many people felt that the treatment of Judge Garland was unfair. I heard Stanford Law Professor and former federal judge Michael McConnell, who is a conservative and is related to McConnell, call it “shameful” at a conference. Friends of mine who voted for Trump have said the same thing to me.
That treatment is now revealed as not only unfair but unprincipled and dishonest. Many of these same people were already planning to vote for Trump while holding their noses. Now they have to vote knowing they are supporting a lie, when their enthusiastic support is needed.
For some undecideds, this may be the last straw. No one likes to be lied to.
The third effect is that going ahead with this vote may tip the Senate to the Democrats in November.
Senate control was already in doubt. For Republican senators in close election races, which is a number of them, a vote in these circumstances is a lose-lose proposition. Some of them, such as U.S. Sen. Lindsey Graham, R-S.C., are echoing McConnell’s lie and are looking just as dishonest.
All of the Republican candidates will be tainted by McConnell’s duplicity. They will all face the cry, “Let the American people decide.”
Worse, if they vote against the nominee out of principle, they will lose substantial Republican support because of their disloyalty.
For all these reasons, I wonder if McConnell and President Trump may yet change their minds.
Probably they will not. McConnell’s dedication to a conservative judiciary has been a major factor in holding together Republican support for President Trump. It has been Trump’s greatest accomplishment. A third additional conservative on the Supreme Court would be a final accolade in their view.
Unfortunately, McConnell’s dishonesty will have another effect. It may finally undermine the widespread legitimacy the Supreme Court still enjoys with the American people.
If McConnell had just told the truth in 2016, if he had just said that he wanted a more conservative Supreme Court and was going to block any liberal nominee as long as he could, Democrats today would be angry, but at least it would all have been above board.
But now, any nominee will be tainted by McConnell’s lie. The new nominee, likely a woman, will be asked at her confirmation hearing about the treatment of Judge Garland. If she says that treatment was unfair, she will be asked why her nomination should go forward when his did not.
If she is confirmed, she will be considered an illegitimate Supreme Court justice. And, since we now know that McConnell was lying in 2016, Scalia’s replacement, Justice Neil Gorsuch, is tainted as well.
I have been fighting against the threat that a Democratic Party controlled Congress might add Supreme Court Justices by statute—that is, “pack the Court.” Such an action would destroy the constitutional tradition of judicial independence. I had hoped that Biden would pledge to veto any such effort. I thought the chances of heading this off were pretty good.
But now, with McConnell’s clear dishonesty, all bets are off. Democrats are already pledging to pack the court if Trump succeeds in replacing Ginsburg. The argument that this is a dangerous violation of the settled norms of government will now be met with the counter-argument that the Court majority was put together through lies.
I fear that in his lust to control the Supreme Court, Mitch McConnell will only succeed in destroying it.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
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