When Justice Antonin Scalia died in winter 2016, Republicans introduced a new logic to the process of filling Supreme Court vacancies: If the opening came shortly before a presidential election, the process should be put on hold until the American people had a chance to make their voices heard.
By that reasoning, then-President Barack Obama had no right to push Merrick Garland ― his pick ― toward a seat on the bench. Garland, then 63, was known as a moderate.
Scalia died 269 days before the 2016 presidential election. Justice Ruth Bader Ginsburg, to compare, died Friday, just 46 days before the 2020 presidential election on Nov. 3.
Her loss instantly triggered dual avalanches of grief and concern over whether President Donald Trump will get a third chance to pick a new associate justice on the nation’s highest court ― a court that could play a pivotal role in a contentious election ― despite what members of his own party said repeatedly four years earlier.
Republicans at the time defended themselves largely by appealing to voters. Here is what more than a dozen of them said.
Senate Majority Leader Mitch McConnell of Kentucky and Senate Judiciary Committee Chairman Chuck Grassley of Iowa: “Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.”
Sen. Lindsey Graham of South Carolina: “As I have repeatedly stated, the election cycle is well underway, and the precedent of the Senate is not to confirm a nominee at this stage in the process. I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president.”
Sen. Thom Tillis of North Carolina: “It is essential to the institution of the Senate and to the very health of our republic to not launch our nation into a partisan, divisive confirmation battle during the very same time the American people are casting their ballots to elect our next president.”
Sen. Ted Cruz of Texas: “It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
Sen. Marco Rubio of Florida: “I don’t think we should be moving forward with a nominee in the last year of this president’s term. I would say that even if it was a Republican president.”
Sen. Cory Gardner of Colorado: “I think we’re too close to the election. The president who is elected in November should be the one who makes this decision.”
Sen. Mike Lee of Utah: “We think that the American people need a chance to weigh in on this issue, on who will fill that seat. They’ll have that chance this November, and they ought to have that chance.”
Sen. Pat Toomey of Pennsylvania: “With the U.S. Supreme Court’s balance at stake, and with the presidential election fewer than eight months away, it is wise to give the American people a more direct voice in the selection and confirmation of the next justice.”
Sen. John Thune of South Dakota: “Since the next presidential election is already underway, the next president should make this lifetime appointment to the Supreme Court.”
Sen. John Cornyn of Texas: “President Barack Obama has exercised his authority to nominate someone to fill the vacancy, but the Senate has an equal authority to determine whether to proceed with that nomination. I believe the American people deserve to have a voice in the selection of the next Supreme Court justice, and the best way to ensure that happens is to have the Senate consider a nomination made by the next president.”
Sen. Joni Ernst of Iowa: “We will see what the people say this fall, and our next president, regardless of party, will be making that nomination.”
Sen. David Purdue of Georgia: “The very balance of our nation’s highest court is in serious jeopardy. As a member of the Senate Judiciary Committee, I will do everything in my power to encourage the president and Senate leadership not to start this process until we hear from the American people.”
Sen. Johnny Isakson of Georgia: “The American people are going to the polls in November to pick the next president, and I think the next president ought to be the one who fills that vacancy, not the one who’s on the way out.”
Sen. Richard Burr of North Carolina: “In this election year, the American people will have an opportunity to have their say in the future direction of our country. For this reason, I believe the vacancy left open by Justice Scalia should not be filled until there is a new president.”
McConnell in the past day has already attempted to justify ramming through a nominee by saying that his argument against Obama’s nominee made sense because the Senate and the White House were controlled by members of opposing parties.
He did not mention the supposed historical precedent ― which was always a dubious claim even in 2016, given how a nominee chosen by President Ronald Reagan was confirmed in 1988, an election year.
McConnell does not seem to care about being labeled a hypocrite. Neither, apparently, does Graham. He promised in 2018 that he would apply the same standard to any pick Trump made after the presidential primaries had begun. (He later said “the rules have changed as far as I’m concerned” after the confirmation of Brett Kavanaugh, the highly controversial nominee accused of sexual assault.)
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