In a sane world, Americans would take a few days to mourn Supreme Court Justice Ruth Bader Ginsburg before jumping into the deep end of Supreme Court politics right before an election, but in 2020, it seems sanity is a luxury we can no longer afford. Ginsburg was an impressive woman, and we should mourn her passing, but Election Day is fast approaching and one of the major reasons Americans elected Trump in 2016 was the Supreme Court.
Hours after Ginsburg’s death, all eyes turned to Senate Majority Leader Mitch McConnell (R-Ky.). When Supreme Court Justice Antonin Scalia died in 2016, McConnell announced the Senate would not consider lame-duck President Barack Obama’s potential nominee. Yet on Friday night after Ginsburg’s death, McConnell announced the Senate would consider any nominee President Donald Trump put forward.
A chorus of voices on the Left condemned McConnell as a hypocrite. Former Sen. Al Franken (D-Minn.) said every Republican senator who refused to vote on Garland but votes for a Trump nominee “will forever be remembered as a monumental hypocrite. And McConnell will live in infamy as the man who destroyed the Senate & the Court through his own lust for power.” Democrats shoveled money at McConnell’s challenger, Amy McGrath, after his announcement. Democrats marched to McConnell’s house to protest but left when they realized he was not at home.
Rather than leading with condolences, Sen. Chuck Schumer (D-N.Y.) tweeted McConnell’s statement from 2016 verbatim. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, the vacancy should not be filled until we have a new president,” Schumer tweeted.
Instead of condolences, Schumer’s first reaction after RBG’s death is a word-for-word copy of McConnell’s statement after Scalia passed away pic.twitter.com/xDzAfxqnmm
— Greg Price (@greg_price11) September 19, 2020
So, is McConnell a hypocrite? Not exactly.
1. “The McConnell rule”
The so-called “McConnell rule” against confirming a Supreme Court justice in an election year is not as clear-cut as it may appear.
The Senate majority leader clarified his position in a statement on Friday night.
“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. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell wrote.
“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. Once again, we will keep our promise,” McConnell added. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Contrary to many media reports, the McConnell rule is far more complicated than just “don’t nominate and confirm a Supreme Court justice in an election year.”
McConnell did not just adopt this more nuanced position from whole cloth for 2020, either. During his first press conference on the issue in February 2016, the Senate majority leader explained, “You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year.”
While President Ronald Reagan nominated Justice Anthony Kennedy and the Democratic-majority Senate confirmed him in 1988, that Supreme Court vacancy opened six months beforehand, in 1987. Reagan nominated Robert Bork and the Senate defeated that nomination. Then Reagan nominated Douglas Ginsburg and Ginsburg withdrew.
“We know what would happen if the shoe was on the other foot,” McConnell added. “A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election yare. That’s a fact.”
In other words, the McConnell rule is as follows: The Senate should not consider a nominee from an opposite-party president when the vacancy opens up during an election year. Giving a Trump nominee a hearing now would not violate the McConnell rule.
2. The Left’s approach to the Supreme Court
If President Donald Trump nominates a replacement for Ginsburg and the Senate confirms him or her, that will represent a key shift on the Court away from the Left’s living Constitution approach and toward Originalism, a return to interpreting the Constitution according to its original public meaning.
Democrats will complain that Trump is forcing the Court in a conservative direction, and to a certain degree, that is accurate. But that doesn’t mean Trump’s nominees are trying to reinterpret the Constitution to support their pet issues in the way that left-leaning judges have done for decades.
In Roe v. Wade (1973), for instance, the Supreme Court reinterpreted the 14th Amendment as a right to abortion. Ironically, at the time the 14th Amendment was being ratified, abortion laws were being tightened, not loosened. Furthermore, the plain text of that amendment — which states that no state can “deprive any person of life, liberty, or property, without due process of law” — not only fails to mention abortion, but could be used as an argument to defend the lives of unborn babies.
To achieve this ruling, the Court stretched the “penumbras of the Bill of Rights” to include a right to privacy — a legacy of the 1965 contraception case Griswold v. Connecticut — and extended that into a right to abortion.
Similarly, in Obergefell v. Hodges (2015), the Supreme Court case legalizing same-sex marriage, Justice Anthony Kennedy wrote a “right to dignity” into the Constitution, twisting the Constitution which had long sanctioned laws against homosexual practice into a document enshrining a right to same-sex marriage.
Both of these decisions — Roe and Obergefell — forced legal changes on the states, arguably violating the 10th Amendment (“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).
The biggest problem with the “living Constitution” is Article V of the original document. The founders understood that the Constitution may need to be altered from time to time, and so they wrote into the actual document a process to alter it. Imagine that! If the founders intended the Constitution to be altered willy nilly by the Supreme Court, they would never have done this.
Even in the case of the horrific pro-transgender decision Bostock v. Clayton County (2020), when Justice Neil Gorsuch reinterpreted the meaning of “discrimination on the basis of sex” in federal law to mean “discrimination on the basis of sexual orientation and gender identity,” he did so in a textualist manner. His decision was arguably wrong and horrific, but he somehow convinced himself that the text of the statute — not some complicated legal theory — required the decision. Make no mistake: Gorsuch betrayed the original public meaning of the law, but he grounded his decision in textualism, not “penumbras.”
Yet left-leaning judges are neither originalist nor textualist. Biden has pledged to nominate judges and justices who adhere to the logic of Roe v. Wade, not just to its result.
McConnell’s decision to support a Trump nominee represents a restoration of the job of the federal judiciary. Democrats have recently taken aim at the Constitution in more overt ways, calling for the abolition of the Electoral College and for packing the Supreme Court. Some have already urged Biden to pack the Court should Trump get a nominee confirmed and Biden wins in November. Others are threatening violent riots and even what sounds like war should Trump get a justice confirmed.
3. Democrats’ statements in 2016.
While McConnell grounded his decision not to consider Garland in precedent, Schumer, Obama, and Ginsburg herself called for a Senate vote on Obama’s Supreme Court nominee. They did not adopt something like the McConnell rule, instead arguing that the Senate should give an opposite-party president’s nominee a vote even if the vacancy opened in an election year.
“Attn GOP: Senate has confirmed 17 [Supreme Court] justices in presidential election years. [Do your job!]” Schumer tweeted.
— Chuck Schumer (@SenSchumer) February 23, 2016
Obama himself also urged the Senate to “Do your job.”
— Barack Obama (@BarackObama) October 19, 2016
Ginsburg herself argued for filling a Court vacancy in an election year — back in 2016.
The Obama White House claimed that “14 presidents have had 19 nominees confirmed to the Supreme Court in election years.” Yet the argument went even further. The White House claimed that “5 presidents have filled spots on the court AFTER THE NEXT PRESIDENT WAS ELECTED.”
— White House Archived (@ObamaWhiteHouse) April 8, 2016
Not only does McConnell’s decision to consider a Trump nominee follow the McConnell rule, but it also follows the claims Democrats made in 2016. According to Obama’s White House, it would even be acceptable for Trump to nominate a Supreme Court justice less than two months before the election, and for the Senate to confirm that justice after the election, even if Biden were to win that election.
Even though it seems that McConnell is a hypocrite — at face value — he has not violated his standard. However, if the Democrats want to stop Trump from nominating and the Senate from confirming a Supreme Court justice, they would be engaging in hypocrisy according to the standard they set in 2016.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.