On Sept. 26, I received a reply from U.S. Sen. Pat Toomey to a Sept. 22 email in which I urged Toomey not to consider confirmation of a Supreme Court justice before the election. I argued that Republicans should be bound by the principle that they established in 2016 and await the determination of the winner of the upcoming presidential election.
Toomey responded that he expects to vote for confirmation of President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg. He cited what he considers to be a very important factual distinction between 2016 and 2020 — the difference being that in this election year the Senate is held by the same party as the President of the United States.
Toomey’s explanation reminds me of a story about the late President Harry Truman. A woman pleaded with first lady Bess Truman to clean up her husband’s language. He’d recently called someone’s comment “a bunch of horse manure.” The first lady was said to have smiled when she heard this and commented, “You don’t know how many years it took to tone it down to that.”
In 2016, Sen. Mitch McConnell announced a norm for nomination and confirmation of U.S. Supreme Court justices. McConnell stated that vacancies occurring in presidential election years would not be filled. Toomey also affirmed that principle in March 2016. Neither McConnell nor Toomey qualified that principle or said it was based on the political party alignment of the Senate and the presidency.
Does anybody remember a single Republican senator saying they were doing this because they didn’t want a Democrat to fill a Supreme Court vacancy during his final year in office, but that it would be perfectly OK with Republicans if a Republican president did so?
If memory serves me correctly, not a single Republican senator claimed in 2016 that they would apply a different principle to a nominee from a future Republican president. The current chairman of the Senate Judiciary Committee, South Carolina Republican Sen. Lindsey Graham, said as late as 2018, “You can hold my words against me,” and asserted that Republicans would not deviate from the principle announced in denying consideration of Merrick Garland an appointment to the U.S. Supreme Court.
The current Republican rationale would have played poorly as being self-serving in 2016. The rationale is still self-serving, and it should not play any better in 2020 or 2022 for senators who value advantage or the acquisition of power over principle.
“A basic principle of the law — and of everyday fairness — is that we apply rules with consistency and not based on what’s convenient or advantageous in the moment,” former President Barack Obama said. “The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle.”
If Republicans confirm Trump’s Supreme Court nominee before the election, there will be a 6-to-3 advantage for Republican appointments, even though Democrats have won the popular vote in six of the past eight presidential elections and held the presidency for four of the last eight terms, covering the appointments of current members of the court.
More importantly, this numerical advantage will have been gained through inconsistent practices and the reversal of norms for confirmation of Supreme Court justices.
In supporting confirmation, Republican senators now argue what they dismissed in 2016. When Democrats argued in 2016 that more than 240 days before the election was sufficient time for the Senate to deliberate and confirm a new justice nominated by Obama, Republicans dismissed that argument out-of-hand.
Now, some Republican senators and even Trump have the chutzpah to assert that confirmation of a new justice is imperative to decide the outcome of a disputed election.
What we do know is that the survival of essential portions (including coverage of pre-existing conditions) of the Affordable Care Act is at stake in arguments before the Supreme Court on Nov. 10. One presidential candidate wants to put a stake in the heart of the Affordable Care Act, and the other wants to improve and strengthen it.
This confirmation process is about the exercise of raw power. Republican senators, including Toomey, have abandoned principles previously defended, and they have raised arguments that they previously dismissed or would have never dared to make.
Hypocrisy and cynicism may be, to some degree, inherent in the political process, but McConnell, Graham, Toomey and their fellow Senate Republicans have raised it to a new level.
The late Supreme Court Justice Potter Stewart once said about pornography that he could not succeed in intelligibly defining it, but added, “I know it when I see it.”
If Harry Truman were alive today, I imagine he would acknowledge that he could not define horse manure, but he knows it when it comes out of the mouths of U.S. senators. And I would smile and agree.
Gregory Hand, a Manheim Township resident, is a retired U.S. Army civilian attorney (1989 to 2017). He served as an Army judge advocate in Germany and as a local prosecutor in Dubuque, Iowa, from 1980 to 1989.