My position remains unchanged from 2016.
The U.S. Constitution means what it says. The president of the United States “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.
There is no asterisks limiting this power in the year of a presidential election or suggesting the Senate hold hearings only if the president’s party controls that chamber. Whenever there’s a Supreme Court vacancy, the current president gets to put forth a nomination and the current Senate gets to vote that nomination up or down, right up until the next president and Senate is sworn in.
That was true in 2016, when Democratic President Barack Obama attempted to fill a Supreme Court vacancy in a presidential election year. And it’s true in 2020 when Republican President Donald Trump will attempt to fill a Supreme Court vacancy in a presidential election year.
Now, yes, if Republican senators had any shame they’d be sticking to the principle to which they stridently hewed four years ago when they blocked Obama’s Supreme Court nominee Merrick Garland from a hearing on the grounds that it was an election year and voters should decide who gets to pick the next justice.
Alas.
Shame and principle are evidently for losers.
Trump will ram through his nominee for the same reason Democrats would ram through their nominee if the calendar were the same but all the party polarities were reversed.
Because it would be foolish not to. Because politely waiting would risk ceding to the other side a lifetime seat on a panel with enormous influence over our social and political lives.
Because, when it comes to unwritten rules and tradition, politics has become Calvinball — the utterly uncodified, improvisational “sport” featured in cartoonist Bill Watterson’s “Calvin and Hobbes” strip (which he stopped drawing 25 years ago, if you want to feel old).
Here’s one example of how that game went:
“You just ran into a vortex spot!” yells Calvin, the boy, at Hobbes, the tiger, in the heat of the contest. “You have to spin around until you fall down.”
Hobbes turns. “Sorry,” he says. “This vortex spot is in the boomerang zone. So the vortex returns to whoever calls it! You spin.”
Calvin protests that the result isn’t fair, but concedes that Calvinball rules are “anything we make up.” As he begins spinning around he mutters, “this game lends itself to certain abuses."
Calvinball politics lends itself to “certain abuses” as well, along with lots of dizzying pirouettes.
Consider the unwritten rule that says the Senate should fairly consider a Supreme Court nomination in a timely fashion.
In the run-up to the 2016 election, Republican Sens. Ted Cruz of Texas, Richard Burr of North Carolina and John McCain of Arizona floated the idea that if Hillary Clinton won the presidency, Senate Republicans were fully prepared to block any nominee she put forward and leave the court with just eight justices or fewer indefinitely.
It was a reminder of how much our system relies — or ought to rely — on norms. It was a reminder that the balance of power only works when the exercise of power follows the spirit, not just the letter, of the law.
And Trump’s subsequent victory in the Electoral College despite or because of how Republicans obstructed the Garland nomination, was a reminder that voters don’t seem to care much about these civics class pieties.
It’s too much to hope for a Calvinball timeout now.
Utah Republican Sen. Mitt Romney’s announcement Tuesday morning that he approves of Trump’s plan to nominate a replacement for the late Justice Ruth Bader Ginsburg all but foreclosed the possibility that moderates in his party would wait to allow the winner of November’s election to make the pick.
But it’s not too much to hope that Democrats put Republicans in the boomerang zone next year. The polling aggregate website FiveThirtyEight gives Democratic presidential nominee Joe Biden a 77% chance of winning the White House and his party a 60% chance of winning a Senate majority.
If that were to happen, the Dems could apply some unwritten rules of their own, such as that it’s OK to expand the number of seats on the Supreme Court to compensate for seats that were unjustly denied or to better reflect the will of the majority of Americans, and that since Washington, D.C., is more populous than Wyoming, it too should be a state.
In fact, I’ll be disappointed if they don’t. My position is that payback ought to be a fierce tiger.
Unless voters rise up to reject political Calvinball, the losers will be the ones who refuse to play.
Twitter @EricZorn
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