Republicans have every right to fill the vacancy left by Ruth Bader Ginsburg on the Supreme Court. Please save your irate emails accusing me of hypocrisy, because I have never believed or advocated for the “Biden Rule” or the “McConnell Rule” or any other fantastical “rule” regulating the confirmation process, other than the prescribed constitutional method.
In March 2016, in the heat of the Merrick Garland debate, I argued that “the Republicans’ claim that the ‘people’ should decide the nominee is kind of a silly formulation,” and the best argument for denying Barack Obama another seat on the court was to stop him from transforming it into a post-constitutional institution that displaces law with “empathy” and ever-changing progressive conceptions of justice.
For a decade, the conventional wisdom said that the GOP’s “obstructionism” — by which liberals meant completely legitimate governance that didn’t acquiesce to Obama’s wishes — was going to sink the party. Conventional wisdom was wrong in the elections held during the Obama presidency. It was wrong in 2016.
The Garland debate did not sink Republicans, who held the Senate and won the presidency. In fact, one of the central promises the GOP relied on to procure those victories — especially among Evangelical voters — was that they would nominate and confirm originalist justices to the Supreme Court. If Donald Trump and Mitch McConnell end up installing replacements for Antonin Scalia, Anthony Kennedy, and Ruth Bader Ginsburg . . . well, “but Gorsuch,” indeed.
McConnell had no constitutional obligation to take up Obama’s Garland nomination in 2016, and he has no obligation to wait for 2021 to vote on the next appointment. There is no constitutional crisis. There is only now a faction of left-wing partisans who are threatening to weaken and pack courts because they didn’t get their way.