Sen. Lindsey Graham, R-S.C., is a hypocrite and a coward.
As we all know, Justice Ruth Bader Ginsburg’s death on Sept. 18 left a vacancy on the Supreme Court. On Sept. 19, Graham tweeted that he would support President Donald Trump “in any effort to move forward regarding the recent vacancy created” by Ginsburg’s passing. Graham’s language may be vague, but his message is clear: When Trump appoints a new justice, Graham will vote to confirm her.
When Justice Antonin Scalia died in Feb. 2016 — nine months before the 2016 presidential election — President Obama appointed Merrick Garland, by most accounts relatively moderate in his jurisprudence, to fill the vacancy. The Republican Party would hear none of it. Arguing that Supreme Court justices should not be confirmed in election years, Sen. Majority Leader Mitch McConnell, R-Ky., prevented the Senate from even holding hearings or Obama’s nominee.
Graham, along with his Republican colleagues, agreed with McConnell; a Supreme Court justice shouldn’t be confirmed in an election year. “I want you to use my words against me,” Graham said. “If there’s a Republican president (elected) in 2016 and a vacancy occurs in the last year of the first term, you can say ‘Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.’”
And should Graham make an about-face? “You can use my words against me. And you’d be right.”
That, folks, is hypocrisy.
On Saturday, Sept. 26, Trump nominated dedicated conservative Amy Coney Barrett to fill Ginsburg’s vacancy. If the Senate confirms Barrett, as it appears positioned to, the Court will have six conservative justices and three liberal justices. If the Supreme Court leaned conservative prior to Ginsburg’s passing, the Republicans’ hypocrisy will entrench a firmly conservative Court for years to come.
Let me be clear: Trump undeniably has the constitutional authority to appoint Barrett, and the Senate undeniably has the constitutional authority to confirm Barrett to the Supreme Court. The issue is not about legality; it never was. It is, rather, a question of principle. The Republican Party’s double-dealing is astounding. It is a naked, unjustifiable power grab. If Garland had been treated fairly — not necessarily confirmed, but at least given hearings or had his confirmation voted upon — there would be little to complain about. Alternatively, if the Senate GOP refused to confirm Barrett on account of it being an election year, it would be consistent behavior.
But the record is simple: The GOP’s stance in 2016 was a stubborn refusal to even entertain Obama’s nominee on account of it being an election year. Where has that reasoning gone?
And now here we are, 2020, with a Republican-controlled Senate poised to confirm an election-year nominee. Unless Merriam-Webster has revised its definition within the past four years, this constitutes hypocrisy of elephant proportions.
I hear the objection already: The GOP’s move is perfectly legal. Yes, it is. Know what else is perfectly legal? Packing the Supreme Court. And if, come January, Joe Biden finds himself as the 46th President of the United States, it should be his first order of business. Will that set a precedent of partisanship infecting the Supreme Court? Unfortunately, yes.
The non-partisan nature of the judiciary would certainly be worth preserving, if it actually existed. Don’t get me wrong: A Supreme Court immune to the partisanship of the legislative and executive branches is preferrable. The realistic prospect of the Court becoming a partisan tool is something to be regretted.
The Republican Party, however, has signalled it doesn’t care if the Court is subject to politics and partisan hypocrisy. If Lindsey Graham & the rest of the GOP genuinely cared about preserving the time-honored tradition of an apolitical Supreme Court, either Garland would be a justice today, or Barrett would not be getting a prompt confirmation ahead of November’s presidential election.
If the GOP wants to play that way, so be it. But be warned: The next time the Democrats control the presidency and the Senate, they are entirely justified in responding in kind. When America bemoans reciprocal rounds of Supreme Court packing, we’ll know who paved the way: the current Senate’s band of Grand Old Hypocrites.
Max Steinbaum can be reached at maxst@umich.edu.
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