Dan McLaughlin on National Review thinks he can justify the naked hypocrisy of Senator Mitch McConnell (R-KY) if he just throws enough words at it, but I don’t see it.
Literally.
First, his presentation is confusing, and it’s not at all clear to me that he’s found parallel situations in which a SCOTUS seat became open in a term-limited election year in which the President is of one party and the Senate is controlled by another party. He certainly enjoyed talking about all the other situations, of which the nominations of President Tyler seemed particularly interesting, and his remarks about some of the politics were a lot of fun – such as President Lincoln’s banishment of Salmon P. Chase to SCOTUS as a way to eliminate a rival. But I’m not looking for entertainment.
Second, there is the veiled use of the discredited whataboutism argument inherent in frantically parsing past behavior without regard to the intent of the Constitution. That is the bulk of his article, a confusing survey of how these things came about. I much preferred the Wikipedia version, which shows several such “No actions”, some of which were due to the lateness in the Presidency of the nomination, others for reasons I shan’t guess – and none of which have happened in the era of Presidential term limits, with the exception of Garland’s appointment. But my point is really this: reaching back to other misdeeds to justify current misdeeds is a misdeed in and of itself; the standard that may be ascertained from the Constitution itself is of more importance.
Third, McLaughlin hides in the avalanche of words and charts a few key mis-statements. I’ll cite the paragraph that stood out for me:
In 2016, Barack Obama used his raw power to nominate Merrick Garland to replace Antonin Scalia in March of the last year of Obama’s term, with the Trump–Clinton election underway. The Republican majority in the Senate used its raw power to refuse to seat that nominee. Having reached that decision, the Republican majority did not even hold a hearing for an outcome that was predetermined.
Using the phrase raw power is a mischaracterization of governance as a power game between opposing parties, and betrays McLaughlin’s inclinations when it comes to governance in the post-Cold War era. The fact of the matter is that
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court …
is best understood as an obligation upon the President and the Senate, collectively, to keep the Supreme Court properly staffed. This is clear once one remembers that the President, and all others, are to take care to execute their duties. There is no mention of political maneuvering, of vacating duties in the interests of furthering political or societal goals, of election year skips, or the importance of having an elvish presence in your heritage when being nominated.
If I may bypass the formal politeness of the Founding Fathers, it comes down to Here are your fucking duties, now go fucking accomplishing them.
And, just because McLaughlin needs to cover the above misstatements, note his closure of the paragraph:
Having reached that decision, the Republican majority did not even hold a hearing for an outcome that was predetermined.
No, no, no. If McLaughlin really believes this, he should hand in his quill pen and retire. Senator McConnell, Majority Leader, chose to never even bring it up. One man. No other Senator had a chance to cast his ballot, now did they? Some Republican Senators may have told McConnell they agreed with him, but, quite honestly, McConnell had a real problem. Merrick Garland was not a far left ideologue. In fact, he’d been endorsed by some Republicans for earlier SCOTUS vacancies. If hearings had been opened, Garland might have charmed his way into enough Republican votes to be confirmed. After all, elections were close, and independents, not Party members, held the keys to power. And Garland’s mid-spectrum position would have become apparent to a public that might have learned to mistrust the Republicans earlier than they apparently have learned since the Trump electoral college victory.
This all would have made McConnell look weak, and it would have made him a target of the Trumpian base. I clearly remember that when the report came of Scalia’s passing, Trump jumped onto his hind feet and shouted during a primary debate, Delay, delay, delay!
Any Senate leader ignoring that advice, that directive, was taking their political life into their hands. McLaughlin is presupposing a conclusion of dubious worth in that one little sentence, attempting to gloss over what was basically a political decision imposed on a governance function over which the Senate has little influence, once confirmation occurs.
But, by McLaughlin’s reasoning, a precedent had been set, and that’s why McConnell is a hypocrite – he’s willing, if a seat opens up, to confirm a nominee, while in identical circumstances with Obama, he was not. And he’s said so.
Fog may obscure the forest, but it’s still there.
