(CNN)On March 16, 2016, President Barack Obama nominated Merrick Garland to fill the vacancy caused by the death of Justice Antonin Scalia the previous month.
On March 16, 2016, Senate Republicans made clear that they would not even hold confirmation hearings for Garland, much less schedule a vote on whether he should ascend to the Court.Given that, you could be forgiven for being surprised by this headline on CNN on Monday night: “Republican leaders vow to fill a potential Supreme Court vacancy this year, despite some apprehension.” Wait, what? A quick check of the calendar shows that it is July 21, which, I believe, is far later in the year than March 16. And, yes, 2020 is an election year — just like 2016.So, what’s different? Well, a Republican is president now. And might not be come 2021 — if polls are to be believed. Passing up the opportunity to reshape the court in a conservative direction for decades to come is not something Senate Republicans are going to do.Read MoreNow, before we go any further, let’s note this: It is more than a little ghoulish for Senate Republicans to openly entertain the possibility of a Supreme Court opening before the end of the year just days after Justice Ruth Bader Ginsburg announced that her liver cancer has returned.Putting that aside, the hypocrisy here is titanic.Senate Republicans appear to be hanging their entire argument on this skimpy thread: Obama was in his second term when he nominated Garland in 2016, while Trump is running for a second term now. Obama would be nominating someone on his way out of office. Whereas Trump would be nominating someone with at least the possibility that he could serve four more years. “I’d like to fill a vacancy,” Senate Judiciary Committee Chairman Lindsey Graham said Monday. “But we’d have to see. I don’t know how practical that would be. Let’s see what the market would bear.”Which is, well, different, than what Graham said back in 2016. “I think the next president should pick the Supreme Court nominee,” he said of the Garland nomination.Graham is far from the only Senate GOPer to change his tune.Senate Majority Leader Mitch McConnell, who had repeatedly said he would work to confirm a Supreme Court nominee this year if a seat came open, saw things very differently when he announced that he and his fellow Senate Republicans would not even meet with Garland.”The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said back then. “The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.”Which, well, yeah. Mitch McConnell 2020, I’d like to introduce you to Mitch McConnell 2016. McConnell circa 2016 also argued that Obama’s pick of Garland was purely political.”It seems clear President Obama made this nomination not, not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election,” McConnell said at the time. “I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.”(Sidebar: That contention was wrong on the merits. Obama chose Garland as a sort of middle-of-the-road option, believing that the judge might be the sort of person who could actually get confirmed amid the partisan fires of a presidential election.)
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McConnell back then believed that a “lame-duck” president should not have the opportunity to fill a Supreme Court vacancy. And yet, when asked Monday whether a lame-duck session of the Senate (if Republicans lose the majority in November) would move to fill a SCOTUS nominee from a lame duck president if Trump also loses, Sen. John Thune, the second-ranking Republican, said this: “We will. That would be part of this year. We would move on it.”Huh? That makes no sense, right?Right! It’s clear hypocrisy. Which is why Iowa Sen. Chuck Grassley, who was the chairman of the Judiciary Committee in 2016 and refused to hold hearings for Garland, told CNN on Monday that “if I were chairman of the committee I couldn’t move forward with it.”He isn’t, of course, the chairman of the committee. As I noted above, that’s Graham. Who is justifying his about-face on filling a Supreme Court vacancy in a presidential election year on the contentious confirmation hearing of Justice Brett Kavanaugh, who faced an allegation that he had sexually assaulted a woman when they were both in high school. (He denied the allegation.)”After Kavanaugh, I have a different view of judges,” Graham told CNN.OK, but what does that have to do with filling a vacancy in a presidential election year, which Graham had previously opposed? The Kavanaugh confirmation fight happened in 2018, which, last time I checked, wasn’t a presidential election year.Look. This is all explained by politics.The Supreme Court over the last several years has delivered a series of setbacks to conservatives — from legalizing gay marriage to upholding Obamacare to preserving DACA. President Donald Trump himself has been outspoken about that fact. “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” he tweeted last month. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”Now, consider those body blows in the context of the 2020 election: Trump is badly trailing former Vice President Joe Biden nationally and in virtually every swing state. Things look so bad right now that Republicans are in danger of not just losing the White House, but also their Senate majority.Faced with that possibility, the party is willing to do anything — and find ways to rationalize what they do — to get another conservative on the Court if there is a vacancy. Because, they believe, that any flack they take for this outrageous hypocrisy will be worth it to have a clear conservative majority in the Court for the next generation.That’s what is happening here. Period.
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