ChrisWeigant.com

A Mountain Of GOP Hypocrisy, Dead Ahead

[ Posted Tuesday, October 25th, 2016 – 16:35 GMT-0700 ]

Assuming the polls are not "rigged," and barring any last-minute revelations in the campaign season, Hillary Clinton is going to be our next president. The chances of this becoming true have been increasing ever since the first general election debate, and they now seem to have crossed the borderline into near-certainty. If Democrats also pick up at least four Senate seats as well, we should all be prepared for a steaming pile of hypocrisy from Republican senators immediately thereafter, as they fall all over themselves in a rush to confirm Merrick Garland to the Supreme Court before Barack Obama leaves office.

Right after Antonin Scalia died (indeed, literally before his body was even cold), Republicans swore they were going to completely ignore their constitutional duty altogether. They cited precedents and traditions (which did not actually exist), in the hopes of running out the clock until they could wrest the White House away from Democrats. But if Hillary Clinton is going to be in the Oval Office for the next four years, Republicans are almost certainly going to do such a dramatic Immelmann turn on the issue that the entire country risks getting caught in the whiplash.

Republicans, of course, hope that nobody's going to notice. I say this confidently because they began this whole charade by honoring a man who devoted his life to the "original intent" of the Constitution by just flat-out ignoring the original intent of the Constitution, on judicial vacancies. It's a wonder Scalia's body didn't start violently spinning even before it reached the grave, when Mitch McConnell (backed by many others in the GOP) didn't just promise that no Obama nominee would be confirmed by the Senate, but that indeed Obama should not even make such a provocative nomination in the first place. And, for good measure, the Senate wouldn't even hold hearings on the nominee, much less an up-or-down vote.

As I wrote immediately after Scalia died:

However, the Constitution actually has no passage in it which states that presidents only get three out of their four years to nominate judges. In fact, the language is pretty unequivocal: the president "shall nominate." Not "has the option to nominate" or "shall nominate, except when politically problematic," or any other such nonsense. Obama has not only the right to nominate whomever he wishes to replace Scalia, it is in fact his sworn duty to do so. Democrats will, no doubt, be reminding all those originalist Republicans about this language in the months to come. Any Republican suggesting that Obama should just refuse to make a nomination is actually arguing for Obama to ignore the Constitution -- something that, normally, makes them quite upset.

Perhaps realizing that arguing for Obama to ignore his constitutional duty was a bit far-fetched (even for them), Senate Republicans soon began peddling two different flavors of nonsense. The first was that "The People" should get a say in Supreme Court nominations. This is just flat-out wrong, because (hold onto Scalia, he's starting to rotate again!) the Constitution does not give The People any direct say whatsoever in the process. The second pile of moose poop emanating from Republicans was that postponing the confirmation process until after the election would somehow "depoliticize" it -- even though doing so would guarantee that the selection process would become even more politicized than it already is. The fact that these two bits of balderdash actually contradict each other was ignored by Republicans (if "The People" have their say in an election, then by definition that is politicizing the issue). One further argument was made that was also built out of moonbeams: tradition dictated that no president nominate a justice in his final year in office. This one was the easiest to disprove, merely by cracking a decent history book.

Here's a quote from Orrin Hatch from this period, which encapsulates all of this idiocy in one tidy pile. When he uttered it, I even devoted an entire rant to disproving Hatch, sentence by sentence.

And so I do support Sen. McConnell in saying, but, look, let's get it out of this terrible presidential brouhaha that is going on, and let's get it over to the next year, and be fair to both sides, because what would happen is whoever wins the presidency is going to be able to make this nomination.

Usually, you never nominate anyone during the last year of a president. And the reason for that is because -- well, there are many reasons, but one reason is because there's always a very contested Senate primaries and also election, and, secondly, generally, one side or the other is going to get very, very upset about it.

Well, I'm saying the Republicans shouldn't act on it, because the proper way is to get this done in a way that cools the whole process around electing judges, and in particular justices to the United States Supreme Court.

I just don't want the court politicized. And this would be the biggest politicization the court in history. And that is saying something, because there have been some other times that certainly would come close to matching this.

But, in all honesty, I just don't want to see the court denigrated any further than it would be in this very caustic election year with the way things are going right now.

Republicans all sang from this songbook, while explaining why they were going to ignore their own constitutional duty as it applied to Obama's nominee, Merrick Garland. But then they got a little greedy, and started speculating about a possible "Plan B" -- obstruct Obama right up to the election, and then if the election didn't turn out the way they wanted, they could just quickly confirm Garland in the lame-duck period. I called such mental gymnastics "triplethink," with the proper obeisance to George Orwell [Editorial note: this article was written on St. Patrick's Day, for one particular phrase's context]:

Let's review the spiral down into irony of the Senate Republicans' thinking. The Constitution is not a "living document" and must be obeyed to the letter. Except, of course, when a Democrat is in the White House. Then you can just start making stuff up. Like inventing a "tradition" that has never existed -- presidents aren't allowed to nominate Supreme Court justices in their final year of office (even though over a dozen out of 44 of them have done so in the past). Furthermore, The People should have a say in the selection -- even though the Constitution was written to take this choice as far away from the popular vote as possible. Judicial appointments were to be made with several buffer layers erected in place of The People ever "having a say" in the process. The Electoral College, the fact that the senators were not originally elected by popular vote -- there are many barriers between the popular vote and judicial appointments in the very same document conservatives are supposed to revere. But none of that matters, because a Democrat is in the White House. A tradition that never was of letting The People have their say (even though the Constitution is designed to prevent this) will avoid "politicization" of the selection, by placing it squarely in the midst of the most political event Americans experience (a presidential election). But now, sensing that the next president might also be a Democrat, Republicans are conceding that they're just hypocritical con-men peddling pure Leprechaun-poop about The People, because if The People elect someone Republicans don't like, then they will ignore The People entirely and just go ahead and confirm Obama's nominee after The People have spoken. Some Republicans in the Senate might have lost their jobs by that point, so they would be voting in direct opposition to their own constituents' wishes.

Got all that? Triplethink! Irony is dead! Hypocrisy is noble! Ignorance is bliss! We're into such uncharted territory that the only way out is a grand gesture to counteract the free-flowing idiocy erupting from the other side.

Senator Al Franken, who is a far superior wordsmith than yours truly, summed this up in a much more succinct fashion:

I hear, "OK, let the people decide, and the presidential election should decide." But then I hear colleagues from the other side say, "Well, you know what, if the election goes the wrong way, I'd be happy to consider this nomination in the lame duck," How absurd is that? So it's: "Let the people decide, unless they decide on Hillary Clinton, in which case let us decide."

Which is precisely where we're about to find ourselves. In approximately two weeks' time, Senate Republicans are suddenly going to pretend they never advocated for The People to have any say in this process at all, and are going to execute that logical Immelmann turn: "We were just kidding about letting the voters have their say, now what matters is denying a Supreme Court pick to Hillary Clinton." In other words, it was all about politics from the very beginning.

Some of us have been speculating about this scenario from the get-go. Here's what I wrote one day after noting Scalia's passing:

The outgoing Republican Senate would likely only be motivated to act if they were faced with an incoming Democratic president and losing control of the Senate. They might get excoriated by the Republican base (who would be licking their wounds from a big election loss anyway) for approving an Obama nominee, but they would be spinning it as the "least of the bad choices," which might help deflect the inevitable political heat.

At the time, this "incoming Democratic president" could have been either Hillary Clinton or Bernie Sanders, showing how long ago it was written. But I don't claim prophetic abilities or anything -- the entire article is a "touch all the bases" examination of every possible election outcome for the White House and the Senate. So this was but one passage in a flurry of exhaustive speculation about the possibilities.

In any case, here we are. The possibility of Hillary Clinton winning the election is extremely high. The possibility of Democrats taking back the Senate is not nearly as high, but still quite good. If this does come to pass, Republicans are (predictably) going to bend over backwards trying to convince everyone that they never advocated that The People have their say in who sits on the highest court in the land. "We never said that," they'll all proclaim, all video evidence to the contrary.

Whatever the excuse Senate Republicans manage to come up with, they will indeed all join in a mad rush to hold immediate confirmation hearings on Obama's pick -- a man who is a lot more moderate and a lot older than Hillary Clinton is presumably going to choose.

This is where, all along, I've been arguing that President Obama himself should cut through their steaming mound of hypocrisy. "You wanted The People to decide, right?" Obama should say, the day after the election. "Well, you got your wish -- I am hereby formally withdrawing Merrick Garland's nomination. Hillary Clinton will get to name a Supreme Court pick on her first day in office -- just like you guys said you wanted. Call it an early Christmas present, because I'm going to give you exactly what you asked for!"

-- Chris Weigant

 

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