People are freaking out over Donald Trump’s decision to try and swiftly nominate and confirm a Supreme Court Justice, and I’ve been hearing an earful about it on TV and online
As a Never Trump conservative, I am especially prone to criticism from people who are surprised, angry, or incredulous when I support something Trump wants to do. This SCOTUS fight is no exception. After all, why is someone who has been so consistently critical of Trump supporting “such blatant hypocrisy,” as one emailer put it?
Because I am in a unique position here, I thought it might be helpful to answer some of the questions that keep popping up. Here goes:
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Why should a Never Trump conservative support this?
If you are a conservative, then you should support the kinds of judges Trump is likely to nominate. Here, I’m talking about Amy Coney Barrett and Barbara Lagoa. These are highly qualified judges that Mitt Romney or Marco Rubio might have nominated. So if you don’t support them now, it might mean that you’ve changed. This is fine, but then you might want to drop the “conservative” part from your résumé. While Democrats will surely scaremonger whomever Trump nominates, it’s not like Republican-nominated judges get on the Court and start taking crazy right-wing positions. Indeed, it’s fair to criticize them for disappointing conservatives too often.
Aren’t there legitimate reasons for Never Trump conservatives to oppose this?
If you believe that Trump is basically Hitler, then you have a moral obligation to try and prevent him from getting any big “wins.”
The problem here is that I don’t know that there’s a correlation between a confirmation and Trump’s re-election (unless the unthinkable happens again, and the Supreme Court has to decide the election results). Don’t get me wrong, on the margins, I think Republicans benefit politically from this vacancy. But I’m not sure it’s contingent on winning or losing the confirmation vote (which seems pretty likely to conclude during the lame duck session after the election, anyway).
Another possible rationale for opposing this is the assumption that Republicans are doing something that is egregious, and that it will lead to us spiraling out of control. I just disagree with the premise that Republicans are doing something weird or outrageous. A vacancy occurred, and the sitting president is going to try to nominate a replacement. That’s it. As I explained in my previous column, a duly elected president has the right to make a nomination, and duly elected senators have the right to confirm (or not) his nominee.
But aren’t Republicans inviting retaliation by pushing this nomination?
Let’s talk about retaliation versus escalation. If Democrats win the presidency and the Senate and fill a legitimate vacancy with less than 50 days before a presidential election, then turnabout is fair play. Democrats will have every right to do to Republicans what Republicans are now doing to them. Likewise, if Trump wins re-election, but Democrats take the U.S. Senate, then they would have every right to refuse to hold hearings for a Trump nominee. (Personally, I think they should hold hearings, and then go on the record voting their conscience, but they’d be under no obligation to do so.)
But if Democrats try to pack the court or kill the legislative filibuster (as they have threatened), then they are the ones escalating.
OK. But what’s the argument for doing this?
It’s simple. People elect politicians to accomplish important things, and in this modern world, the Supreme Court is too often the final arbiter on those important things.
Just as a baseball team’s fans might rightly be angry and disenchanted if their ball club started throwing games, conservative voters have every right to expect that the people they elected will at least try to defend their values and advance their beliefs.
It is demoralizing for people to work hard in the political process only to see the establishment elites abandon the fight to avoid trouble. This is one of the reasons we got Trump—there was at least a perception that conservative elites kept losing because they were too soft. I’m not sure that was valid, but backing down on something of this magnitude would only confirm this perception.
Let me also say that I can understand the frustration rank-and-file liberals are feeling. From their standpoint, Republicans have gained a lot of ground, despite only winning the popular vote once this century. Those tough breaks might feel unfair, but they comply with the rules of the game.
Politics is important. We are fighting over big, important, disagreements.
I believe in playing hard, which is different from fighting dirty. It means you run out every ground ball—it doesn't mean you sharpen your cleats. Democrats want to portray this as an example of the latter, when it’s really an example of the former.
What about the argument that this will sow discord, and—for the good of the country—Republicans should just back off?
If the normal exercise of power causes people to riot, pack the courts, “burn the entire fucking thing down,” try to impeach the president (to delay a confirmation), or otherwise create a constitutional crisis, then those people are the ones who are to blame.
By the way, many of the threats have been around long before this vacancy. The court-packing threat has been around for years, now, and consider this from Barack Obama’s speech at John Lewis’s funeral, earlier this summer: “Once we [kill the filibuster and] pass the John Lewis Voting Rights Act, we should keep marching to make it even better… By guaranteeing that every American citizen has equal representation in our government, including the American citizens who live in Washington, D.C., and in Puerto Rico; they’re also Americans.”
I suppose it’s possible that simply nominating and confirming a Supreme Court Justice will give Democrats the pretense to do what they wanted to do anyway. Maybe this creates a permission structure for Democrats to make their own power grab? I just don’t think we can allow fear or threats to dictate our leaders’ actions. Basically, Democrats are saying, “We will kill this dog if you confirm a judge.” On principle, I think caving in to extortion is a bad idea.
But isn’t it hypocritical for Republicans to nominate an election-year replacement for RBG when they said back in 2016 the next president should decide on Scalia’s replacement?
Yes. Republicans and Democrats have effectively switched sides—and arguments. Both are now stealing the other team’s talking points, while trying (unpersuasively) to explain why this time, it’s different.
The position that “the next president” should get to make the nomination was always a bogus one. As The New York Times’ Nate Cohn pointed out, “The Senate didn't act on Garland and might well act on Trump's selection for a simple reason: Republicans didn't want Obama's judge, they do want Trump's judge, and so they may act on one but not the other.” It’s about power. Senate Republicans should have been honest about their agenda, which is to confirm judges who share their philosophy—which is not a sin.
So yes, I’m more than happy to call these Republicans hypocrites for the stupid thing they have said—stupid things that are now coming back to haunt them—even as I urge them to do what I want them to do, which is to confirm a qualified nominee.
Who do you think benefits politically from this?
You never know how these things are going to break. There’s a theory that this nomination will inject abortion into the debate, and that this could splinter the Trump coalition. Another argument is that this will fire up progressives. But let’s be honest: If progressives aren’t fired up to defeat Trump, already, is this going to help?
My take is probably closer to conventional wisdom. This is good for Republicans for several reasons. First, it shows that this election is bigger than Trump. It’s no longer just a referendum on his presidency. That’s important, because some portion of the electorate are Never Trumpers who dislike Trump, but retain their conservative beliefs. This fight (which—no matter what Democrats say—is not about Trump) pushes these conservative Never Trumpers to the Republican camp.
But this battle doesn’t just diminish Trump’s role in the election, it also means that Biden (who was almost impossible to demonize) will have to share the spotlight. It elevantes other Democrats like Kamala Harris (who is still a sitting U.S. Senator and a member of the Judiciary Committee) and AOC.
This also helps change the subject from COVID-19, an issue that can only hurt Trump (barring a vaccine).
Lastly, I think it generally helps more Republicans running for the U.S. Senate than it hurts. It might even ironically help Susan Collins in Maine, who gets to run for re-election by opposing this vote.
What do you think liberal readers might not fully understand about this?
In the not-too-distant-past, there was a norm that said any qualified judge, no matter his or her judicial philosophy, would be confirmed. In that context, what McConnell did to Merrick Garland in 2016 would be considered a norm violation (though not unconstitutional or unprecedented).
But that norm has long gone out the window, and I would argue that Democrats are primarily responsible for that. Never mind the attacks lobbed at Brett Kavanaugh or Clarence Thomas, then-Senator Ted Kennedy described “Robert Bork’s America” as a “land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids...”
That kind of scurrilous attack did nothing to bring about comity or help preserve norms, I assure you. It’s also worth noting that when he was a senator, Barack Obama tried to filibuster Samuel Alito’s confirmation, and that then-Senate Majority Leader Harry Reid killed the filibuster for lowercourt nominations, opening the door to confirmations with a simple majority.
My point here is not to suggest that Republicans are angels (they’re not), but to suggest that (a) Democrats are not innocent victims, and that (b) this fight precedes Donald Trump and has little to do with him.
Any final thoughts?
Yes, I’m most worried about the things that Trump does that no normal Republican would or should do. When that happens, I tend to agree with progressives who are criticizing Trump. Right now, progressives are criticizing Trump for doing what any normal Republican would or should do. That’s perfectly natural and normal. And that’s just my point.
