Vote on President Trump’s Nomination, Senators—the Sooner the Better

The idea that the president should nominate someone and then the Senate should wait until after the election for a vote is unfair to the nominee.

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Should the U.S. Senate act before the election on President Trump’s soon-to-arrive nomination of a new Supreme Court justice? Or should Senate Majority Leader Mitch McConnell put off such a vote until after the election, or even until after the inauguration (assuming Trump’s defeat)?

Some people think the latter is the right thing to do, including at least two of McConnell’s fellow Republican senators, Lisa Murkowski and Susan Collins. Murkowski was on record even before Justice Ruth Bader Ginsburg passed away, and Collins released this statement on the day after Ginsburg’s death: 

In order for the American people to have faith in their elected officials, we must act fairly and consistently—no matter which political party is in power. President Trump has the constitutional authority to make a nomination to fill the Supreme Court vacancy, and I would have no objection to the Senate Judiciary Committee’s beginning the process of reviewing his nominee’s credentials.

Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election. In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.

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  1. Mark C

    We can argue all day about hypocrisy and whether Mitch is right, BUT to suggest that the process, precedent, country’s future should hinge on ensuring the job applicant receives a “fair” outcome is just silly.

    Once the President names a nominee, and that nominee has agreed, that person knows exactly what scenarios may play out. No one knows WHICH scenario will happen, but no one should be SURPRISED by whichever one plays out.

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  2. Lylegruby

    This is awfully weak. It reads like simple partisan power politics and is shot through with bad arguments and red herrings.

    First if McConnell was so clear in his position, why didn’t he mention it in his statement following Scalia’s death? Why did his own conference misunderstand it so badly? Why did the public? Where is the response to any of those points? Simply saying that McConnell brought up the opposing senate and president point a couple times doesn’t come close to addressing the fact that no one understood him to be making that argument.

    Second, a SCOTUS seat involves considerations far more important than how tough it would be on a nominee who fails after a new president is elected. I recognize the humanity involved, but the nominee has a say in this as well. They’ll know the risks going in, and this is a job that only 9 people have at one time. Yeah, it’s hard to get.

    Third, the author is simply wrong to say that Kavanaugh is viewed as legitimate. I agree that people will follow his rulings. But it’s going to take an awfully long time for liberals to accept his confirmation as legitimate (and this comes from someone who agrees that he was treated unfairly). The fact that the author doesn’t understand Adam White’s point that the public needs to be accepting of the justices on the court demonstrates how strongly partisan the author is. Ramming through a second justice after the stakeholders said they wouldn’t absolutely risks undermining the public’s trust in the Court.

    Fourth, the author doesn’t actually make any argument concerning the responsible wielding of political power. It’s beyond debate that the country is a powder keg. The GOP previously said they wouldn’t confirm a nominee this close to an election. They’ve gone back on that in brazenly hypocritical fashion. The author’s argument is that they can do this so they should and call the Dems’ bluff because they probably won’t get rid of the filibuster and pack the court. How about the political tensions in the country and fair play among their elected representative, especially considering this invokes the ones that are supposed to be statesmen? Not a word from the author on that.

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    Bill Dyer (aka Beldar)

    I've commented quite a bit on David French's post entitled "Resumed, the SCOTUS Wars Have." I won't repeat here what I said there. But consistently with what I said there:

    I agree with Mr. Franck's conclusion.

    I am less concerned, frankly, with fairness to the nominee than with fairness to the voters who elected these GOP senators, including several elected in 2018 in large part because of the way the Senate Dems treated Bret Kavanaugh. But that concern compels me to the same conclusion as Mr. Franck, so it's a distinction without a difference. It's a damned shame, a national tragedy, how Justice Kavanaugh was smeared; but what the Dems did to the institution of the United States Senate was worse by orders of magnitude than that which can be done to any one person, even so fine and decent and brilliant and qualified as Justice Kavanaugh.

    I disagree with Mr. Franck's prediction that "the Democrats, not least in a Biden White House looking ahead to the 2022 midterm elections, would lose their nerve for taking two such nakedly radical steps as these [i.e., nuking the legislative filibuster and packing the SCOTUS]." They see both of those as in their long-term interests, fully justifying any blow-back in a midterm election. The paradigm here is Obamacare, which lost them the House in the 2010 midterms, reestablishing divided government throughout the remainder of Obama's first term and all of his second term — but damned if it's not still the law of the land (with the exception of the individual mandate), even though in the interim, the GOP held a majority of both chambers of the 115th Congress and the White House.

    The legislative filibuster, once nuked, will never return, because it's a creature of comity, which is now comprehensively dead in the Senate. And the creative way to pack the SCOTUS isn't to increase its size, but rather, to re-write the Judiciary Act to move enough GOP justices, based on their ages or length of tenure, onto another federal bench, which even the current GOP-appointed Justices would probably agree to be constitutional notwithstanding the life-tenure-during-good-behavior guarantee. Once "promoted" to the "Hall of Fame" bench that hears, say, all appeals of patent cases from the District of Idaho, it's unlikely any particular Justice would be returned to the SCOTUS by a subsequent Congress & POTUS of the party whose POTUS nominated that Justice to begin with.

    Biden may even think he can stand up to his party's hardliners once he's POTUS. But section 4 of the Twenty-Fifth Amendment is a nontrivial Achilles heel for an elderly, gaffe-prone, and superannuated POTUS genuinely out of tune with his or her VPOTUS & cabinet, which I expect will describe Slow Joe to a T by roughly, oh, April Fool's Day 2021. Link: https://www.constituteproject.org/constitution/United_States_of_America_1992#244

    The Dems will do these things, in fact, regardless of whether the GOP seizes or forfeits its opportunity to nominate and confirm a successor to Justice Ginsburg during the current (116th) Congress. It's tragic that we've come to this point, but blinks reality to deny that we have. Sentiment and regret are not good reasons to miss the opportunity to confirm a successor to Justice Ginsburg.

    And in fact, although undeniably ruthless, it might be the best way to motivate GOP voters to turn out on Election Day — the best way to address Trump's loss of elderly voters who disapprove of the federal goverment's handling of the Covid pandemic, and the best way to demonstrate to conservatives who care about the federal courts that this Administration and Senate still have their backs — perhaps preventing the loss of the Senate, the WH, or both.

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    Paul Montagu

    "The idea that the president should nominate someone and then the Senate should wait until after the election for a vote is unfair to the nominee."
    If that is your stance, Matthew, then Garland was indeed treated unfairly. The reality is that there is no principle here, and there hasn't been since Reid adiosed the filibuster. It's all about power politics.

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  5. rob

    But you can't approve a nomination in 43 days. Thats is not nearly enough time to make up rape allegations.

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    Vlad M.

    Mario Loyola has a very interesting article over at National Review explaining why the Democrats are throwing another temper tantrum. Historically speaking, they're not accustomed to being refused. Why? Because the Republican hold on the Senate is of recent memory. Republicans, being used to the minority party status in the Senate, are used to having uphill battles. The Democrats, yesterday's victors, are not.

    "Historically, when a president has nominated a Supreme Court justice while the Senate has been controlled by the opposing party, the results (more on these below) have not turned out well for the president’s party. [...]

    Democrats are having trouble understanding this because, unlike Republicans, they have almost never had to face the situation that Obama faced in 2016. Bill Clinton was the first Democratic president to face a Senate controlled by Republicans since Harry Truman. But neither Clinton nor Truman had a vacancy open up during their periods of “cohabitation” with a Republican-controlled Senate.

    Before Barack Obama, the last Democratic president who had a Supreme Court vacancy open up during a Republican-controlled Senate was Grover Cleveland, who nominated the northern Democrat Melville Fuller to the Court in 1888, sparking a fierce confirmation battle. Barack Obama was thus the first Democratic president in 128 years to have to bother with a Republican-controlled Senate during a Supreme Court vacancy. The main reason is that Democrats have controlled the Senate the vast majority of the time since Franklin D. Roosevelt’s election in 1932.

    Republican presidents, on the other hand, have had to contend with Democratically controlled Senates to fill many Supreme Court vacancies. Just looking back to the Nixon administration, we see that Republicans have made no less than eleven nominations to the Supreme Court in the face of a Democratically controlled Senate. It has been a rocky road, full of disappointments for the president, the GOP, and quite often the nominee. [...]

    So, of the eleven nominees sent by Republican presidents to a Democratic Senate, three were rejected, two were subjected to character assassination, the majority proved to be progressive, and most of the rest turned out to be swing votes. Only two out of the eleven Republican nominees proved to be reliably conservative justices of the Supreme Court. That suggests that the odds of a president getting a nominee that his party will be happy with through a confirmation process controlled by the other party are less than one in five. That could not have been lost on the smart lawyers in the Obama White House."

    https://www.nationalreview.com/2020/09/fill-the-supreme-court-vacancy-now/

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    Analytic Converter

    It's amazing the way you can twist yourself into a pretzel justifying this as anything other than a pure exercise of power. What I wonder is why any Senate going forward would confirm a judicial nominee from an opposite-party President.

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    Idontdocute

    I think that Mr Trump will do his usual slipshod effort at vetting, leaving it to be done by the mainstream media because it isn’t worth his administration’s bother or it just doesn’t fit into the tight time schedule. We will end up with the same song, different verse of the cluster that Kavanaugh created and we should hold off on blaming the investigators that will do the heavy digging because no one else did. I really have not understood why, time and again, Mr Trump picks up a nominee for a position and tosses them into the meat grinder, followed by the moaning of the unfairness of it, the evil and the heartless destroyers of the good and the hard working, all over again. Maybe it isn’t worth his concern to do the prep work and protection for his choices or this is his closest he can get to gladiator games to let his inner Roman emperor out to play.

    His staff is inexperienced and thin, getting thinner with every rush hour running of the rats to jump ship in time to do a book deal or recover from covid à la maskless rally duty. Contingency planning has never been much of a consideration with these folks. The elders of the Senate and the Congress are very busy taking care of themselves during election endgame and then there is that hoard of pissed off Tiktok kids that got a taste of his blood at the Tulsa rally. If I were the Democrats and the press, I would start paying attention to those kids chatting with their “awesome” computer skills, limited adult supervision during home alone time at virtual school and go get him attitude. Vetting of the Supreme Court justice by K pop and cosplay fans on a mission to save the world. This could be fun.

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      Pat Riot

      Or we'll see the same song as Gorsuch. The Democrats will just make a big deal out of the *precedent* and leave the nominee alone, assuming it's not viz. Rudy or something. Yes, they will drive their point home that he/she is "not who we would pick", and point out that the Republican policy desire to abolish Obamacare and make abortion illegal are the reasons for this pick, and their side is the opposite of that, yadda yadda. That's just them making their side known.

      The correct thing for Democrats to do--and I suspect they will do it--is to set themselves up to pack the court in January.

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        Idontdocute

        The voters, as in real people, are not going to like anyone dinking around with the court. They want jobs, they want safety, and they want opportunity. The stuff we banter around most days just is not top of the mind on folks who don’t know how many justices are currently on the court.

        Remember, it will be heavy Democrat up for Senate re-election in two years and if we don’t calm the crap down and turn out some quality / quantity work product to fix the parts of government that has been stomped to bits by this administration, we will have Mitch back in charge one more time.

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          Pat Riot

          I reckon the SC means "abortion" to probably 80% of voters.

          If the Senate flips in 2022 then Biden will no longer be able to confirm judges. Etc. The SC and the lower courts are now at the whim of each election.

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    Vlad M.

    Let's add some Kevin D. Williamson to the mix:

    "And after the slandering of Robert Bork, Clarence Thomas, and Brett Kavanaugh, arguing that Republicans should decline to move forward on the nomination for comity’s sake is laughable. Nobody believes for one second that if President Hillary Clinton were struggling toward an uncertain reelection campaign and Senate majority leader Chuck Schumer had the chance to confirm a new Supreme Court justice of her choosing that the Democrats would hesitate for a second. Nor have they ever shown themselves interested in replacing “conservative” justices — meaning those who are not open partisan campaigners on the model of Ginsburg — with conservatives or moderates in the name of ideological balance. The Democrats put left-wing activists on the Court when they get the chance, even if, like Elena Kagan, they have to lie their way through their confirmations to get there. Democratic complaints about political hardball after the outrageous campaign of fantastical fiction and slander directed at Kavanaugh, the anti-Catholic hatred directed at Amy Coney Barrett by Senator Dianne Feinstein (D., Calif.), etc., are beneath contempt. So is threatening to create a constitutional crisis through a Court-packing scheme if a Democratic president and Senate are elected, threatening (more) riots and (further) arson, and other attempts at extortion.

    On the matter of the Court-packing endorsed by Michelle Goldberg et al., Democrats should be careful about the precedents they set. Republicans may learn slowly, but they learn. Democrats spent generations engaged in partisan gerrymandering and then suddenly got religion on that subject when Republicans got good at it. They didn’t think their slander of Robert Bork and the politicization of the nomination process would come back to bite them, but it did. Mitch McConnell believed the politics were on his side, and he was right. A Democratic Senate might reorganize the federal courts in a way that gives their party a momentary advantage — which is banana-republic stuff, but that is what Michelle Goldberg of the Times advocates, and she is not alone — but there will be a Republican majority again. There’s one now. Is that a weapon you want to put in Mitch McConnell’s hand? In Donald Trump’s hand? Because the genie doesn’t go back into the bottle."

    https://www.nationalreview.com/the-tuesday/ruth-bader-ginsburg-didnt-understand-her-job/

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      Pat Riot

      "Democrats should be careful about the precedents they set" -- ROFL

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      1. Val Xavier

        Honestly, why is this funny?

        The answer I would guess terrifies me. (See Kamala Harris laughing at Constitutional restraint for a hint...) So please, set me straight.

        Democrats stopped the filibuster, which would solve this problem right now and make the nomination just before an election a completely moot point. Rarely does a true binary consequence present itself like this. But here we are.

        They savaged Brett Kavanaugh on completely false pretenses, and will likely do the same to Amy Barrett or any other nominee offered by the President. I've read comments about how people see Republicans as being above all this nonsense, and really, we should be. But the reality is, if one side is willing to get dirty, and ends up with the power to control and dominate, how can the other side just sit there and take it without leveraging at least *equal* force in response? Is that not a basic human right, conferred by Nature?

        At some point the Democrats have to realize they're going to be answered in kind for Bork, for Thomas, for Kavanaugh, for the *endless* fabrications of "Constitutional" law made up by certain justices... Add to that these *threats* of adding Blue States, packing the Court, inciting more riots and chaos... Acting like the ends justify the means is pure Contempt for The Constitution and Rule of Law. That eliminates any *should* considerations for how the other side responds. We should *ALL* be above this brutally uncivilized behavior. But we're not. And we got the Government we deserve, including the Presidency we're enduring right now.

        Jonah has said this many times - Democrats make these plays assuming they're *always* going to have power. Elections have consequences and power goes both ways. This is the situation. You're right, Pat, the word "should" is completely irrelevant. The fact is "can" is the only word that matters now. And Republicans *can* nominate and confirm. What possible reason do they have now, in the context of this history, to restrain themselves?

        The ends do not mean squat without the means. Better Democrats should learn that lesson now.

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        1. Peter

          None of your statement means anything and ends justifying the means?

          Lol ok buddy.

          Literally empty words.

          As PatRiot stated future leaders are free to do what they legally can. Each side will reap what we sow, and we’ll all get over it like gay marriage.

          democratic support to rid the filibuster is huge now. And its inevitable. You all know that.

          Changes to the SC though is still in the air and I don't know or believe that.

          Democrats have been pushed internally to be more aggressive, why would they not now?

          Only thing that will save the filibuster is if the gop keep the senate.

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          Pat Riot

          It doesn't matter whose fault it is. The bottom line is that after Garland we entered the era of Constitutional hardball. Now things will be run according to the exact letter of it, which is that a Senate+President will do whatever they legally can and a Congress+President will do as well. The GOP will get a seat here and the Democrats will pack the court, and that's the way it is for now on. I don't see why people are debating this.

          As a side note, Kavanaugh and Thomas were... confirmed and seated. Insofar are we're going to have the pointless conversation of whose fault it was, that doesn't even make any sense.

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          1. Val Xavier

            My point was to describe events and defend the notion that Republicans can use the same tactics. This isn’t about whose fault it is: it’s our fault for putting up with it.

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  10. Val Xavier

    The President should nominate and the Senate confirm, should the candidate be acceptable.

    "Nobody believes for one second that if President Hillary Clinton were struggling toward an uncertain reelection campaign and Senate majority leader Chuck Schumer had the chance to confirm a new Supreme Court justice of her choosing that the Democrats would hesitate for a second." - Kevin Williamson

    Does, in fact, anyone here believe given the same circumstances, Democrats would not proceed?

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      Pat Riot

      The word, "should" is no longer in the vocabulary of Washington. People really need to understand this.

      The Republicans will seat a justice and the Democrats will expand the court if they win. Period. End of story. Stop trying to pretend our country isn't in the state it's really in.

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      1. Daniel

        I think you give the democratic twitter outrage machine too much credence.

        Democrats like to talk a lotta shit. But to make court packing a reality would require at least the end of the senate filibuster, possibly admit a state or two, and do all this without suffering too many defections and without the support (possibly even with the active opposition) of a hypothetical President Biden. The political willpower just isn't there.

        Besides, memories and 'righteous indignation' fade and Biden hardly wants the start of his term marred by ugly headlines about blatant democrat court packing.

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          Pat Riot

          Why admit a state? If the Democrats have 50 votes and the presidency, the Constitution says that's what they get to do.

          If the Republicans aren't bothered by the continuous streams of absolute bald-faced lies being played on TV all day from GOP Senators swearing they wouldn't do exactly what they are doing, then Democrats won't be bothered by the thing that remedies it.

          What the Democratic positioning on the justice: Democrats will vote against the *precedent*, not the justice herself. Just like the Republicans said they did for Garland (who was 10 months from the election not six weeks). They will make a big deal out of the *fairness* and the *process*, which will pave the way for court-packing being the solution to Republicans breaking their word.

          Biden will be president of a polarized country where Fox News will issue armageddon warnings on a daily basis when he is in office. They made a gigantic issue out of Obama's *tie* in his tenure, so their dial will already be at 11 regardless of what he does. Turn the channel though, and we won't have the daily Trump shit show and Biden will run a professional organization again. Biden will be able to do this and maintain the 53% approval rating he will need to keep him and his party in office no problem.

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        John Boren

        I certainly hope the Democrats don't. What was once settled would then become a live issue, a moving target, and with a legislative filibuster gone, then they would regret all the unintended consequences. What happens in 2022 and 2024 when the inevitable backlash to perceived overreach occurs? We likely have a Republican trifecta in 2024. EPA? Department of Ed? They could totally get axed with a bare majority and there's nothing the Dems could do. I think in the end, the price they could pay for a short term Supreme Court majority would not be worth it.

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      scott

      I would say both sides wouldn't be making these arguments if they believed people won't believe them. That's not the issue for a lot of people, though. The GOP aren't Democrats, they're supposed to be better than tanking institutions for short term political gain. They will definitely twist themselves into pretzels to try and convince themselves they still are those people, though. Witness the above article..."it's fine, the institution will be just fine, everything is perfectly normal, plus Democrats suck". Naive or not, that's the whole sorry state of affairs.

      I'm awaiting the creepy chain e-mails about the subject that will soon arrive in my inbox.

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      Cornelius O’Brien

      I think context matters so, I hesitate to predict a similar display of chutzpah by Schumer, et al, assuming the "same circumstances" are that Clinton is President and the Senate has a Democratic majority. Schumer would be bucking the precedent set in 2016, rhetorically, but not in practice. He may have, at least, allowed the family to sit shiva(?) and the Justice to lie in state before politicizing this, or over the new year at least. The lack of comity and decency is truly appalling. No doubt, McConnell is following through on what he did then. I don't see hypocrisy in what he's doing now; it's the continuation of the same power play. If we devolve into one party rule, McConnell's move in 2016 will be a post along the way. I retain a sliver of hope that we can get off that path in 2020 by observing the precedent established by the Republican rhetoric of 2016. Otherwise, LOLZ, rhetoric is no more than a salesman's puffery, to be contradicted ad nauseam.

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        Cornelius O’Brien

        post script - I don't think McConnell and his progeny will have a seat at the table when one party rule comes.

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        1. Val Xavier

          He will if he is useful.

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