Justice Ruth Bader Ginsburg’s death has landed like an atomic bomb on a trench war. Only six weeks remain until the 2020 general election, and the battle over replacing the progressive icon is on.
President Trump already has promised to put forward a nominee this week, one he said he wishes confirmed prior to November 3. Senate Majority Leader Mitch McConnell, too, has promised the floor vote needed to approve the president’s nomination.
Both men face criticism for not waiting until after the election. This argument states that, this close to the polls, the people should decide on the president who nominates and the Senate who confirms.
The attacks on McConnell go further. He is called a hypocrite, with these critics pointing to his words and actions in 2016. That presidential election year, McConnell refused to hold hearings, much less a vote, on President Obama’s replacement for Justice Antonin Scalia, who had died on February 13. McConnell did so, they claim, based on arguments similar if not identical to those now asking to wait.
Is this critique valid? First, it is clear that the president and Majority Leader stand on irrefutable constitutional grounds. So long as Donald Trump’s term in office continues, he possesses the power to nominate to fill a Supreme Court vacancy. So long as the current senators remain in their offices, they hold the authority to consent or refuse to consent to a presidential nominee.
The 2020 McConnell remains consistent with his 2016 self. At least so far.
In 2016, McConnell with Judiciary Chairman Chuck Grassley wrote in the Washington Post why they refused to give hearings for Merrick Garland, President Obama’s nominee to replace Justice Scalia.
McConnell did write that, because a presidential election was underway, “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.” But McConnell’s reasoning did not end there. He gave two additional criteria for why this moment called for waiting.
Agree or disagree, McConnell’s 2020 statement aligns with those he made in 2016.
First, he argued that the American people should choose “rather than a lame-duck president.” President Obama could not run for re-election in 2016 and was not on the ballot. Second, McConnell said the American people should choose rather than the current president “whose priorities and policies they just rejected in the most-recent  national election.” The 2014 congressional elections had gone very well for Republicans, especially in retaking the Senate.
As McConnell noted last week, only one of the three preceding circumstances clearly exist. Yes, an election is pending. But President Trump is no lame duck, running as he is for re-election. Yes, Democrats did well in the 2018 midterms in the House. But the GOP gained seats in the Senate, the body that would confirm or reject President Trump’s nominee.
Thus, the charges of hypocrisy against McConnell fail to accurately engage with his own reasoning. Agree or disagree, his 2020 statement aligns with those he made in 2016.
At least they do for now. Many in right-leaning circles are debating whether the president or the Senate could act after November 3 but prior to the end of their terms in January. Again, doing so clearly would fall within the powers of both. Also, if President Trump wins re-election and the Senate remains in GOP control, no objection could be made to moving forward.
But what if Joe Biden wins on November 3? The common phrase for President Trump’s status from then until January 20 would be a … “lame duck president.” What if the Senate shifts to Democratic control? The previous national election would then be seen, by McConnell’s criteria, as a repudiation of the sitting president. Not to mention that the senators likely making the difference themselves would be “lame-duck” senators.
If McConnell pushed through a nominee in those latter circumstances, it would violate all of the terms he set out in 2016. It would be a clear, naked act of hypocrisy.
Until and unless that happens, the attack on Sen. McConnell is an unfounded smear. He has kept consistent. Therefore, whatever happens before, on, or after November 3, he should be judged by his actual words and deeds.
Come January, when the political smoke clears, we will know for real what that makes him.