In the hours following Supreme Court Justice Ruth Bader Ginsburg’s death, Senate Majority leader Mitch McConnell made it clear to the American people that he intended to fill her seat as soon as possible, even before the November 3rd Election. This move has, unsurprisingly, been extremely controversial, receiving condemnation from all sides of the political spectrum. Both President Trump and his Republican allies have argued that Democrats are attempting to undermine the U.S. Constitution by opposing a pre-election or lame-duck vote, as appointing a Justice to the Court is the President’s constitutional duty. However, the criticism of the appointment has never been regarding the legal legitimacy of a vote, but rather the political precedent set by the same Republican Senate leadership just four years earlier.
It was on March 16, 2016 when Obama appointed Judge Merrick Garland to the Supreme Court — 237 days before the November election — that the Republicans in the Senate refused to even have confirmation hearings, let alone a vote. McConnell, noting that the senate “should let the people decide” on the appointment, made the point that the Senate should not confirm a justice in an election year, especially when the Senate and White House are controlled by opposing parties. In a statement defending the Republican leadership’s decision to pursue a confirmation vote despite their own precedent, Senator McConnell said that “the historical precedent is overwhelming and it runs in one direction. If our Democratic colleagues want to claim they are outraged, they can only be outraged at the plain facts of American history.” The majority leader went on to note that in all but two instances where a judge was being replaced in an election year, they were confirmed by the Senate. However, he conveniently left out that one of those two instances was when McConnell, with many of the same senate Republican Senators, blocked President Obama’s nomination of Judge Garland.
Faced with accusations of blatant hypocrisy regarding the Supreme Court issue, from both the Left and the Right, McConnell has cited a supposed precedent that no justice has ever been confirmed in an election year by the opposing party of the President since the 1880’s. However, this is solely because there has not been such a situation since the 1880’s, until the blocking of Garland in 2016. Every other time in modern history that this situation has occurred, the President and Senate majority were from the same party, and the bipartisan votes that confirmed these past justices do not suggest that a 2016-like situation would have occurred otherwise.
Lastly, Republicans have argued that they are acting in the will of the majority of Americans, as their Senate majority was expanded by two seats in 2018. However, this argument ignores the fact that Democrats successfully regained control of the House of Representatives, a legislative body which is far more reflective of the country’s ideals than the Senate, as the Senate’s current structure gives equal representation to the over 40 million Americans in California as it does to the under 600 thousand people in Wyoming. In fact, the Republican majority represents 15 million fewer people than the Democratic minority in the Senate. Additionally, the incumbent Republican President lost the popular vote by nearly 3 million votes. If the Republicans want to argue that they are acting in the will of the majority of American territory, that would be much more accurate, but acting as though they are working in the interest of the majority of the American people is extremely misleading at best.
If Republicans truly believe in allowing the American people to decide the fate of the Supreme Court, they must act as they did in 2016 and prevent a vote until the next Presidential Inauguration. An attempt to do otherwise would further tarnish the reputation of the Senate GOP, but more importantly would damage Americans’ faith in an already undemocratic system.