There is so much that is wrong and dishonest about the Democrats’ angry argument against President Trump choosing a Supreme Court justice to replace the late Ruth Bader Ginsburg that it is difficult to know where to start.
But let’s begin with their mantra that Republicans “stole” the nomination of Merrick Garland from President Barack Obama when Senate Majority Leader Mitch McConnell refused to consider it in 2016, an election year.
There are laws against theft, and if someone engages in that heinous behavior, there is redress; the crime can be cured and the perpetrator punished. The fact that there is no redress in the Garland case is a strong hint, which Democrats refuse to take, that there was no theft, no constitutional crime.
Seating a justice requires a nomination by the president and confirmation by the Senate. That the executive and legislative branches must agree is a feature, not a bug, in the system. Under its leader, McConnell, the Senate declined to give Garland its assent. That’s it.
McConnell centered his argument on the president and the Senate being controlled by opposing parties. Presidents have nominated 29 justices in election years, 19 when the presidency and the Senate were controlled by the same party and 10 when they were split. The Senate confirmed the nominee 89% of the time when there was no party split but rejected 80% of those nominated when opposing parties held sway. Historically, the Garland case was not unusual; only Democratic apoplexy was.
The Left has been finding excuses to derail Republican nominations since its disgraceful traducing of Robert Bork in 1987. They argued then that justices had to move with the times and twist the “living Constitution” to modern mores. A third of a century later, they don’t bother with anything so quaint as an intellectual argument. They simply say that Republican judges are unacceptable because, from time to time, they rule that Democrats have overstepped the bounds of the Constitution. Democrats won’t do the hard (probably impossible) work of securing democratic legitimacy to change the Constitution and thus seek a bench of robed dictators, like old-fashioned monarchs, to rule that the nation’s founding document doesn’t mean what it says.
By now admitting this, by acknowledging that they’re interested only in results, not process, Democrats make the strongest possible case against themselves. Process is what our Constitution, like any constitution, is for. The Democrats essentially demand that the referees side with their team against their opponents. It’s a compelling argument against those who are making it.
It takes considerable effort when watching them make this slam-dunk case against themselves to suppress feelings of schadenfreude. Democrats, with Joe Biden more prominent than anyone among them, made the Supreme Court nominating process the ugly, improper, and broken thing that it is today. They deserve to lose this battle not just because they are wrong in principle, but also because it is they who have recklessly and cynically smashed what was elegantly constructed and suited to purpose.
From Bork and Clarence Thomas, through Samuel Alito and on to the horror show of their efforts to destroy Brett Kavanaugh, Democrats accused Republican-nominated judges with scant or no evidence of wishing to revive racial segregation — “put y’all back in chains” is how Biden has expressed it — forcing women into back alleys for abortions, racism, rape, and sundry other hideous offenses. There has been no depth to which they will not sink to get their way. And it is difficult not to feel at least a twinge of pleasure not just in the fact that they are being thwarted, but also in their frustration over it.
Republicans don’t do the sort of things Democrats do. They confirm Democratic presidents’ nominees by big margins — even after the Democratic smear campaigns against Bork and Thomas, Ginsburg was approved 96 votes to 3 — and don’t argue that justices are unsuitable because they’re not conservative. The gross arrogance and accusations all come from the Left, as do most threats of escalation.
Senate Minority Leader Chuck Schumer says everything will be “on the table” for revenge if Trump and McConnell seat another justice. By this, he means that Democrats are prepared to pack the court with house-trained liberals if they win back the White House and Senate. Biden, who has never seen a principle he did not find malleable, has begun havering on this issue, backing away from his previous opposition.
But with the Democrats and the court, everything has always been on the table. They have always been prepared to go as far as necessary to get their way. They have said that in similar circumstances, they’d do what Trump and McConnell are now doing. So, their objection is over results, not principle. They’ve already shot their bolt.
