Mitch McConnell’s decision about RBG’s replacement is consistent with his reasoning, not hypocritical
Nathan Knickerbocker
Let me preface this by saying I hate Mitch McConnell. There are a lot of reasons I could list that would put me over the word limit, but I will leave it at this: I despise McConnell. However, his argument about Ruth Bader Ginsburg’s replacement is consistent, and you are likely wrong if you think he is a hypocrite because of it.
In Feb. 2016, Supreme Court Justice Antonin Scalia, a conservative icon and friend of Ginsburg, died in his sleep. Former President Barack Obama nominated Merrick Garland to fill the open seat. In response, McConnell, the majority leader of the Senate, said, “the American people should have a voice in the selection of the next Supreme Court justice.” Obama’s nomination did not receive a vote.
There has been a lot of focus on McConnell’s argument about Obama’s nomination since Ginsburg’s death. The immediate reaction has been, “hypocrite! You said that you did not want to fill the seat during an election year! You need to wait!” Ultimately, McConnell refused to have a vote on Obama’s nominee, but this time he is allowing one for Donald Trump, causing many to call him a hypocrite.
The problem with this conclusion is that it ignores the totality of McConnell’s argument. As he clarified in his statement after the death of Ginsburg, “in the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term.” McConnell’s point here is that the reason he did not give Obama’s nominee a vote was that Obama was in the last months of his two-term presidency. In addition, the American people also elected a new Republican-majority Senate in 2014 with the Democrats losing 9 seats. The American people flipped the Senate over to the Republicans in 2014 during Obama’s second midterm election, suggesting that they may have had a form of buyer’s remorse.
The flip in the Senate was an indicator that the American people did not want Democrats or Obama to nominate and confirm a new Supreme Court justice. Therefore, McConnell would not entertain a vote as Obama’s presidency was almost over and the people could elect a Republican president as indicated by flipping the Senate, which ultimately came true when Trump was elected. Had this not been the case, America would have elected a Democratic president so they could fill the seat, leaving us with a new president either way.
Addressing Ginsburg’s death, may she rest in peace, McConnell’s point is the same as it was in 2016. He said, “by contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.” Beyond the fact that during the midterms, Republicans not only maintained the Republican-majority Senate, but even expanded it, the 2020 election is not the guaranteed end of Trump’s time in the White House as he can still win another term. The American people may still wish to keep him in office and have shown through the midterm election that they want him and Republicans to fill the seat.
McConnell is staying true to his point; the American people have not expressed that they have buyer’s remorse, nor have they shown that they want Democrats to nominate a new Supreme Court justice. If they did, they would have given a strong indicator by flipping the Senate in either 2016 or 2018. Thus, they have entrusted Republicans to nominate and confirm a new justice. McConnell is completely consistent and within his right, as is the president, to nominate a new justice and have a floor vote on this issue.
McConnell’s hypocritical scramble to fill Supreme Court seat puts another nail in the coffin for our democracy.
Get Bitch McConnell Ouuuuut of here!!
Kara Burke
With the recent death of Supreme Court Justice Ruth Bader Ginsburg, Republicans are scrambling to nominate a justice to fill her spot before the election takes place, breaking their 2016 precedent where they argued a president should not choose a Supreme Court justice during an election year.
Senate Majority Leader Mitch McConnell led the charge in 2016, saying, “the American people should have a say in the Court's direction,” according to NPR. This is important because currently, 62 percent of the American people and half of Republicans believe the nomination to fill RBG’s seat should be delayed, according to a Reuters poll conducted the day after RBG’s death.
Republicans’ whole justification for this argument about postponing a nomination stems from the fact that in the Civil War Era, this same action was taken by the Senate, so thus there was legal precedent.
One of the most powerful advocates for the policy was South Carolina Senator Lindsey Graham, who said, "I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination,” according to NPR.
Well Senator Graham, I plan to do just that.
Let’s first talk a bit about legal precedent and how that works. Firstly, the idea of legal precedent actually stems from court systems. The official definition of legal precedent from Cornell’s Law Dictionary is “precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. Precedent ... requires courts to apply the law in the same manner to cases with the same facts.”
Thus, according to the definition of legal precedent that has now been adapted to apply to the rest of the government, the same decision that was made in 2016 should be made now. On top of this, RBG herself requested on her death bed that they wait to nominate her replacement until after the election. RBG was an accomplished legal expert and understood how legal precedent works as it is a major part of Supreme Court decisions, which further proves why Republicans should wait on their nomination.
So now, Republicans have gotten themselves in a bit of a legal pickle; they either can admit that what they did in 2016 was wrong and say they feel the wrong precedent was set at that time, or they follow the precedent they set in 2016 and not nominate a Supreme Court justice. Considering in 2016 they followed precedent from the Civil War Era, they should be willing to follow precedent from four years ago.
Except McConnell and his followers have decided they’ve created a loophole to this precedent—it only actually matters if the Senate majority and president are from different parties. Now as you can see from above, this is simply not how this could work legally, and it’s a completely false claim.
McConnell’s entire argument sits on the fact that according to NPR, a Democratic president has not nominated a Supreme Court justice coinciding with a Republican Senate majority since 1895. The problem here is that the opposite has happened several times, with one example being Justice Clarence Thomas, who was nominated by George H. W. Bush and confirmed by a Democratic majority Senate.
The American legal system cares nothing of what political party you are when it comes to the law, so this argument is completely invalid. McConnell and all his followers are hypocrites trying to pull the wool over the American people’s eyes.
Republicans’ only other refutation to ignoring the rules of our legal system has been, “but Democrats have done it too.” This is of course, a lie.
In 2013, Democratic Senator, and Senate majority leader at the time, Harry Reid passed a bill in the Senate to decrease the voting requirement for the appointment of lower court and cabinet nominees. From this, it would now only take a simple majority to approve a non-Supreme Court judge, not a two-thirds majority. McConnell responded to this by enforcing the same rule for Supreme Court justices.
Do I personally like that this occurred at all? No—I think all appointees should require a two-thirds majority vote to gain approval, but I do think McConnell extending the policy to Supreme Court justices served as enough political just desserts for Democrats’ decision to take the nuclear option.
What McConnell is doing now goes past the usual political games between parties; it ventures into authoritarian-like actions that are destroying the very structure of our democracy.
As citizens of this nation, it’s our duty to hold these Republican senators, such as Graham, to the legal precedent they set in 2016. Sorry Mitch, but it’s time to let the people decide.