Norms, we are told, matter. Violating norms, recklessly disregarding norms — these are charges on which President Trump is often arraigned in the court of public opinion.
The indictment starts with his annoying habit of inventing insulting nicknames for his opponents and critics. You can add to the list as you will and perhaps come up with enough material just there to consume the 700-plus word limit of a newspaper column.
But Trump hasn’t been the only one disregarding norms of late. Consider the question of whether and when the president and Senate should fill the Supreme Court seat vacated by the death of Justice Ruth Bader Ginsburg.
The historical precedent is clear, as set out by National Review’s Dan McLaughlin. When a vacancy occurs in a presidential year and the opposition party has a majority in the Senate, the president can nominate, but the nominee is almost never confirmed. There have been 10 such vacancies in the history of the republic. Presidents made pre-Election Day nominations in six cases, but only one nominee was confirmed before the election. That was in 1888.
Presidents whose parties had Senate majorities selected nominees in election years 19 times, and 17 of those nominees were confirmed. The two rejections came together in 1968, when President Lyndon Johnson’s nominee for chief justice, Abe Fortas, and his nominee to replace Fortas as associate justice were blocked by a bipartisan filibuster.
Senate Majority Leader Mitch McConnell thus was following precedent when he blocked consideration of President Barack Obama’s nominee to fill Antonin Scalia’s seat, and now, he is following precedent again by promising a floor vote on Trump’s nominee to fill Ginsburg’s seat.
Democrats are the ones being inconsistent here. If you think a president’s nominee is entitled to a vote from an opposition Senate, then a fortiori, you must think the nominee is entitled to a vote from the party’s Senate.
Then again, you may not think such flip-flopping violates a norm. But Democrats’ threats to pack the Supreme Court with additional justices if they win the presidency and a Senate majority certainly does.
The Supreme Court has had nine justices since 1869. After his landslide reelection, President Franklin Roosevelt tried to add six more in 1937. That power grab was soundly rejected, even though his Democrats had a 74-17 majority in the Senate and a 334-88 majority in the House.
Another assault on institutional norms arises in the form of Democrats’ proposals to admit Washington, D.C., and Puerto Rico as new states, though neither meets long-established requirements for new statehood, as I argued in this space last week.
A third violation of norms is their stated desire to abolish the Electoral College on the grounds that it and the Senate are unfairly tilted to Republicans when the voting populations of the various states are taken into account. But currently, each party holds 10 of the 20 Senate seats in the 10 largest-population states and 10 of the 20 Senate seats in the 10 smallest states. That’s not actually much of a tilt!
Similarly, any Electoral College tilt to Republicans is of short duration. In both 2004 and 2012, incumbent presidents were reelected with 51% of the popular vote. But a similar percentage of the vote netted Obama 332 electoral votes and Republican George W. Bush only 286.
Hillary Clinton’s entire edge in popular votes came from California. That’s because since 2000, for the first time since 1820, our largest-population state is voting far out of line with the national average.
That puts the party favored there at a disadvantage, just like any party in which votes are heavily clustered in relatively few congressional or legislative districts. The party in which the votes are more evenly spread around enjoys a natural advantage.
Democrats can try to compensate for this by changing or evading provisions of the Constitution, but amendments must be approved by 38 state legislatures. What’s more, all 50 states would have to approve the elimination of the states’ equal representation in the Senate.
A more practical and speedy response and one that doesn’t violate norms is to modify your political positions and rhetoric. It may satisfy liberals’ pride to pile up votes in California and the coastal northeast by denouncing “deplorables” in the flyover states. But it’s also feasible to win more votes there.
It’s been done, in the 1990s. Bill Clinton twice carried nine of the 10 states touching on the Mississippi River, carrying their electoral votes 95-7. In 2016, Hillary Clinton lost them 65-30.
Meanwhile, Brookings Institution scholar Shadi Hamid in the Atlantic forecasts that if Trump wins, Democrats “will be unwilling, even unable to accept the result … resulting in more of the social unrest and street battles that cities including Portland, Oregon, and Seattle have seen in recent months.” Doesn’t post-election violence violate norms?
