Editorial: Senate Should Wait on Supreme Court Nomination

YOUNGSTOWN, Ohio — To some extent, the death of Ruth Bader Ginsberg Friday night came as no surprise – her longtime battle with cancer was no secret.

Nonetheless, it came as a shock to the body politic.

It added tension to an already tempestuous presidential election season. President Trump said he plans to announce a candidate Friday or Saturday to fill the opening. Within hours of Ginsberg’s death, Senate Majority Leader Mitch McConnell pledged that Trump’s nominee “will receive a vote” in the Senate.

That position directly contradicts his stance of four years ago, when he and his fellow Senate Republicans refused to even take up then-President Barack Obama’s nomination in March – 10 months before a new president would be sworn in — of Merrick Garland to succeed the late Antonin Scalia. (Obama waited a month after Scalia’s death to name a nominee.) 

U.S. Sen. Lindsay Graham, who joined his fellow Republicans to prevent Obama’s nominee in 2016 from advancing, just two years ago said that if an opening came in the last year of Trump’s term the Senate would wait until the next election. “Hold the tape,” he challenged. 

Graham justified his shift from his earlier position by claiming that the contentious confirmation hearing for now-Justice Brett Kavanaugh caused him to change his stance. 

Not everyone agrees with McConnell’s inclination to act on a Trump nominee – not even all Republicans. Both U.S. Sens. Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, said they do not support filling Ginsberg’s seat before the election. 

Political talk shows are filled with discussions about many of the more partisan voices in the Senate. Little has been said about U.S. Sen. Rob Portman, R-Ohio, considered one of the more moderate members of the GOP caucus. 

We were disappointed with what we heard from Portman late Saturday. His commitment to the principle he voiced unequivocally appears to have changed with the party in the White House. Here is his statement following Scalia’s death in February 2016: 

“We are in the midst of a presidential election and a vigorous debate within both political parties on the direction of the country, with the election less than nine months away. I believe the best thing for the country is to trust the American people to weigh in on who should make a lifetime appointment that could reshape the Supreme Court for generations. …  Whether the next president is a Republican or Democrat, I will judge any nominee on the merits, as I always have.”

Portland and other Senate Republicans have acted with creativity and energy absent from tackling other priorities in crafting tortured justifications for abandoning their supposedly principled stances of four years ago. 

“In 2016, when the vacancy occurred following the death of Justice Antonin Scalia, I said ‘the president has every right to nominate a Supreme Court justice … But the founders also gave the Senate the exclusive right to decide whether to move forward on that nominee.’ Since the 1880s, no Senate has confirmed an opposing-party president’s Supreme Court nominee in a presidential election year,” Portman said. 

“In contrast, when the presidency and the Senate are controlled by the same party, the precedent is for the president’s nominees to get confirmed,” he continued. “In the 19 occasions that a vacancy has occurred when the president and the Senate are of the same party, the Senate has confirmed the nominee and filled the seat in every instance but one.”

Such caveats and nuances were absent four years ago. To all but those obsessed with arcane Senate minutiae or raw partisanship, the GOP senators’ positions represent little more than an example of staggering hypocrisy on Portman and his colleagues’ part. Their rationalizations don’t even offer n a fig leaf for justifying putting party over principle.  

Republicans aren’t the only ones doing an about-face on their positions from four years ago. Senate Minority Leader Chuck Schumer of New York also called for holding off on confirmation.  

“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” he said over the weekend. 

If those words sound familiar, they are the same ones McConnell used in 2016 to oppose an Obama notation.    

Meanwhile, U.S. Sen. Sherrod Brown, who in 2016 urged Republicans to consider Garland’s nomination, said Friday that the American people “deserve a voice in the momentous decision we now face.” 

We admit we find Brown’s decision somewhat more defensible, given that Obama had nearly a year left in office, whereas the general election is less than two months away – and people are already voting in some states.   

While Americans should expect a certain degree of partisan loyalty, there’s only a certain amount of hypocrisy they should be asked to stomach. 

Although it might be hard to believe, there is potentially worse to come. Already, Democrats are discussing the possibility, if they become the Senate majority and Democratic nominee Joe Biden is elected, of eliminating the filibuster in the Senate and expanding the number of Supreme Court justices.  That could make the partisan fights we’ve seen in recent years seem like schoolyard spats, deepening ideological division.  

Senators of both parties should declare that they would not vote on a Supreme Court nominee this year. Should senators – including Portman — choose to advance a nominee, voters should bear that in mind in future elections, and those senators should be prepared for consequences at the ballot box.

Copyright 2022 The Business Journal, Youngstown, Ohio.