Democrats are clearly regretting their decision to pull the trigger on the “nuclear option” back in 2013, when Mitch McConnell’s fervent opposition to the Obama Administration’s agenda pushed Democratic leader Harry Reid’s back against the wall. As CBS News explains in much more detail (Reid first invoked the rule only for cabinet posts), the death of the 60-vote threshold for cabinet appointees and federal judges has a long history that stretches back to the George W Bush era.
When Reid first invoked “the nuclear option” – as Bush-era GOP Congressional leader Trent Lott infamously termed it – then-Senate Minority Leader Mitch McConnell warned “you’ll regret this, and you may regret this a lot sooner than you think.”
However, as the battle over appointing the successor to SCOTUS justice Ruth Bader Ginsburg, who passed away yesterday at the age of 87 after a yearslong battle with cancer, begins, there’s another McConnell quote that we suspect Democrats will try to wield like a cudgel. Just hours after the death of Antonin Scalia in February 2016, McConnell announced that – in a departure from decades of precedent – he wouldn’t call Obama’s nominee, Merrick Garland, for a vote, and that the next SCOTUS justice would instead be left to the next president – whomever that might be.
At the time, the GOP primary had already dwindled to between President Trump and Sen. Ted Cruz, though most Americans still assumed that Hillary Clinton would win the election that November.
“Of course, the American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent,” McConnell said.
That gamble has paid off for McConnell in a very big way, and when the history books are written, it will likely be remembered as one of the savviest political gambles in history.
Democrats are already doing everything they can to force McConnell to eat those words. In a tweet sent last night, Sen. Minority Leader Chuck Schumer deployed McConnell’s infamous quote verbatim.
The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.
— Chuck Schumer (@SenSchumer) September 18, 2020
Schumer followed that up by retweeting a clip that we imagine will also be widely shared in the coming months: South Carolina Sen. Lindsey Graham backing the Republicans’ decision to refuse a vote on Garland. “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.”
“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.” pic.twitter.com/quD1K5j9pz
— Vanita Gupta (@vanitaguptaCR) September 19, 2020
All of this followed tweets mourning RBG’s death, and lionizing her immense contribution to liberal jurisprudence.
Justice Ruth Bader Ginsburg fought to the end, through her cancer, with unwavering faith in our democracy and its ideals. That’s how we remember her. But she also left instructions for how she wanted her legacy to be honored. My statement: https://t.co/Wa6YcT5gDi
— Barack Obama (@BarackObama) September 19, 2020
Obama wasn’t the only one. President Trump also released a statement mourning her passing.
Statement from the President on the Passing of Supreme Court Associate Justice Ruth Bader Ginsburg pic.twitter.com/N2YkGVWLoF
— Donald J. Trump (@realDonaldTrump) September 19, 2020
Trump also shared a statement from GOP Sen. John Thune on RBG’s passing.
My full statement on the passing of Justice Ruth Bader Ginsburg below ⬇️. We didn’t always agree, but RBG was a true patriot who loved this country and dedicated her life to serving the American people and the law. pic.twitter.com/rSKLaxHCun
— Senator John Thune (@SenJohnThune) September 19, 2020
As did GOP chairwoman Ronna McDaniel, who tweeted a video of Trump offering high praise to the deceased justice.
— Ronna McDaniel (@GOPChairwoman) September 19, 2020
After sharing some remembrances of his own, former President Barack Obama called on McConnell and the GOP to delay a vote to nominate a successor until after the Nov. 3 election. Obama accused the GOP of “inventing the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.” Here’s his full statement via the Hill.
He went on to challenge the GOP to be “consistent”.
“Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in,” Obama said.
“A basic principle of the law – and of everyday fairness – is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment,” he continued. “The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle.
“As votes are already being cast in this election, Republican Senators are now called to apply that standard,” Obama said.
The court’s decisions in the coming years “are too consequential to future generations for courts to be filled through anything less than an unimpeachable process,” the former president said.
Meanwhile, Mitch McConnell released a statement affirming that he would move to confirm a successor as soon as possible, instead of waiting.
That might sound convincing, but consistency isn’t a regular feature of American politics. It doesn’t change the facts on the ground: The GOP has more than the 51-vote majority it needs to confirm the next justice. As we mentioned last night, Amy Coney Barrett is already a frontrunner.
Biden has also already chimed in, saying that the “voters should pick the president, and the president should pick the justice for the court to consider.”
“The voters should pick the president and the president should pick the justice for the Senate to consider.”pic.twitter.com/LUj7PRKKpT
— Daily Caller (@DailyCaller) September 19, 2020
He soon went on to say that the GOP should back off, before adding that the “average” time to confirm a new justice is roughly 70 days, more than the 45 days until Election Day.
Still, one could argue that Biden just inexplicably signed off on his rival (the president) moving ahead with the confirmation. Even political pundits, at least several quoted by Bloomberg, not exactly a pro-Trump media outlet, mostly expect Trump and the GOP to move ahead with the confirmation, something that could both galvanize his base, while also potentially motivating more swing voters to come out and vote Democrat (as shrieks about Trump ‘destroying American Democracy’ echo across social media).
Though the Hill pointed out that McConnell still needs to convince a handful of moderates, who might be inclined to side with Democrats, to back the next nominee, which could create some political complications for Trump. Whatever happens, happens. It’s definitely not a done deal yet.
There’s little doubt that her death, which coincided with the Jewish high holiday of Rosh Hashana, has “reshaped” the race in its final weeks.
Tom Pappert breaks down the dark legacy of Ruth Bader Ginsburg.
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