Courts

Republicans Take 'Do As I Say, Not As I Do' Approach To Hypothetical Supreme Court Vacancy

The GOP really wants another Supreme Court seat to fill this year.

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I mean, I’m not surprised. Are you? The Republican party has long taken American Exceptionalism off of the international stage and applied it to their own political whims, with the only consistency being that they’ll twist principles to suit whatever is the political objective of the moment.

Anyway, Ruth Bader Ginsburg recently announced that she’s undergoing treatment for cancer, so naturally the GOP is wishcasting what it would be like to get a third nominee by Donald Trump on the Supreme Court. “But,” you say, “it’s an election year. Didn’t the GOP squash the nomination of Merrick Garland under the flimsy excuse that it was an election year?” Yes, yes they did. But the rules are different when the GOP has an opportunity to stack the Court with jurists of their own political persuasion.

And CNN has catalogued it:

“We will,” said Sen. John Thune of South Dakota, the second-ranking Republican leader, when asked if the Senate would fill a vacancy, even during the lame-duck session after the presidential election. “That would be part of this year. We would move on it.”

Compare and contrast with Thune’s comments from 2016:

“The American people deserve to have their voices heard on the nomination of the next Supreme Court justice, who could fundamentally alter the direction of the Supreme Court for a generation,” Thune said in a statement in March 2016. “Since the next presidential election is already underway, the next president should make this lifetime appointment to the Supreme Court.”

Hmmm, I wonder what could possibly be different?

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At least (seriously, this is the bare minimum) some Republicans aren’t quite so craven.

Asked about his past opposition to moving a nominee in a presidential election year after the primary season, [Judiciary Committee chair Sen. Lindsey Graham] said: “After Kavanaugh, I have a different view of judges,” referencing the brutal 2018 confirmation process of Supreme Court Justice Brett Kavanaugh.

“I’d like to fill a vacancy. But we’d have to see. I don’t know how practical that would be,” Graham told CNN Monday. “Let’s see what the market would bear.”

Which, to be clear, does not mean that Graham would stand in the way of a hypocritical SCOTUS nominee that would likely permanently hurt the legitimacy of the Court. Just that he’s unwilling to admit that to a news outlet… at this time.

Missouri Senator Josh Hawley, a member of the Judiciary Committee, said he would be “shocked” if Trump didn’t try to fill a SCOTUS vacancy no matter when it came up. Hawley at least tried to create a distinction between 2016 and 2020:

“I think we have a different set of circumstances. We have a President who is very actively running for reelection,” Hawley said. “He’s going to be on the ballot. People are going to be able to render a verdict on him like they couldn’t on Obama. My guess is he would absolutely nominate somebody. I would be shocked if he didn’t.”

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Of course Hawley’s logic quickly falls apart. Because if the American people say to Trump, “You’re fired,” well, he’ll still have placed his pick on the Supreme Court. This is the epitome of a distinction without a difference only designed to make Hawley seem like he is not being blatantly hypocritical when, you know, he is.

Senator Joni Ernst of Iowa also got in on the hypocrite train:

“(If) it is a lame-duck session, I would support going ahead with any hearings that we might have,” she said. “And if it comes to an appointment prior to the end of the year, I would be supportive of that.”

It’s telling that the most sane statements collected by CNN are from North Carolina senator Thom Tillis, which the publication describes as “vulnerable” in his reelection campaign, “I am praying for Justice Ginsburg’s health. That’s all I’m really focused on right now.”

And Tillis knows the chance of a vacancy caused by a retirement is pretty unlikely:

“I don’t think there are many indications that there are. Normally those moves are made back in June over the session. I don’t see any real possibility that there will be one,” Tillis said.

For the rest of the country, let’s just hold on to the fact that Trump filling another Supreme Court vacancy this year is pretty unlikely and hope like hell 2020 doesn’t have another unwelcome surprise waiting for us.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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