(Update) SCOTUS fight is not about qualifications, it is about an illegitimate nomination process

Following up on the previous post, SCOTUS fight is not about qualifications, it is about an illegitimate nomination process, E.J. Dionne of the Washington Post today adds, It’s time to make Republicans pay for their supreme hypocrisy:

You want bipartisanship on Supreme Court nominations? Let’s have a consensus moment around Sen. Ted Cruz’s idea that having only eight Supreme Court justices is just fine.

“There is certainly long historical precedent for a Supreme Court with fewer justices,” the Texas Republican said last year when GOP senators were refusing even to give a hearing to Judge Merrick Garland, President Barack Obama’s nominee.

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If that argument was good in 2016, why isn’t it valid in 2017? After all, some Republicans were willing to keep the seat vacant indefinitely if Hillary Clinton won the presidential election. “I would much rather have eight Supreme Court justices than a justice who is liberal,” Sen. John McCain (R-Ariz.) said in October:

At a debate on October 10th, Senator John McCain, of Arizona, said flatly, “I would much rather have eight Supreme Court Justices than a [ninth] Justice who is liberal.” A week later, in a radio interview, he made that a “promise,” telling listeners that “we will be united against any Supreme Court nominee that Hillary Clinton, if she were President, would put up.”

Sen. Richard Burr (R-N.C.) went further: “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

Yes, Republicans do have a principle on nominations: When the Supreme Court’s philosophical majority might flip, only Republican presidents should be allowed to appoint justices.

We are in for a festival of GOP hypocrisy in the debate over President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court.

As if to prove Dionne’s point, the Septuagenarian Ninja Turtle Mitch McConnell has an op-ed in the Post today, Democrats, ditch the apocalyptic rhetoric on Judge Gorsuch:

(The Turtle Man once again is lying, falsely asserting the so-called “Biden Rule.” Biden: “There Is No Biden Rule”; In Context: The ‘Biden Rule’ on Supreme Court nominations in an election year: “There was no Supreme Court vacancy to fill. There was no nominee to consider. The Senate never took a vote to adopt a rule to delay consideration of a nominee until after the election . . . Based on Biden’s words, it appears he would not have objected to Bush nominating someone the day after election day. It would have given the Senate more than two and a half months to vote on confirmation.” Something the Turtle Man did not do.)

When our nation lost Scalia in the middle of a contentious presidential election, I looked to the precedent set forth by Democratic Vice President Joe Biden, who as chairman of the Senate Judiciary Committee declared that Supreme Court vacancies arising in the midst of a presidential election should not be considered until the campaign ended. It was, he said, “what history supports [and what] common sense dictates” and the only way to prevent the nomination process from being further “racked by discord and bitterness.” It’s what we know today as the Biden Rule.

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The election is now behind us. The precedent for these circumstances is to respect that result and give the nominee of the new president due consideration followed by an up-or-down vote. That’s how Republican senators treated the nominees of newly elected Democratic Presidents Bill Clinton (Ruth Bader Ginsburg and Stephen G. Breyer) and Obama (Sonia Sotomayor and Elena Kagan), and that’s how Democratic senators should treat the newly elected president’s outstanding nominee today.

(The Turtle Man conveniently fails to mention the actual historical precedent: One-third of all U.S. presidents appointed a Supreme Court justice in an election year: 14 presidents have appointed 21 justices during presidential election years. A half-dozen presidents, classic lame ducks, filled Supreme Court seats even though their successors had been elected.)

E.J. Dionne continues:

At least I understand Republican and conservative hypocrisy on this subject: They are focused on power and who will wield it. I find it harder to understand well-meaning people who were appalled by the hyper-politicization involved in the Garland blockade but now claim that an effort to stop Gorsuch’s confirmation will only make matters worse.

Worse? Really?

If someone slugs you, should you be condemned if you defend yourself by swinging back? If a bully makes someone’s life miserable, will taking him on and calling his bluff only make matters worse?

Perhaps you think the above is hyperbolic, and I accept that my line of thinking won’t appeal to pacifists. But if you are not a pacifist, ask yourself how this procedural extremism will be halted if one side is rewarded for violating all the conventions and rules of fair play and the other side just meekly goes along.

The Rubicon was crossed with Garland. Conservatives complain about the treatment of Robert Bork when he was nominated to the court in 1987, and they turned the word “Borked” into a battle cry. But Bork got a hearing and a vote on the Senate floor, which he lost. To be “Merricked” is to be denied even a chance to make your case.

The Garland case was only a particularly egregious example of what we have to fear even more of in the months to come. The road to the outrages we are seeing from Trump was paved by his party’s violation of long-standing norms. Such norms were brushed aside again Wednesday when the Senate Finance Committee suspended the rules to ram through two Trump Cabinet nominees. How often will Republicans run roughshod over their opponents to do Trump’s bidding?

There comes a time when the only way to stand up against future abuses is to insist that there will be no reward for the abuses that have led us to this point. If not now, when?

Exactly.

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