After Supreme Court Justice Antonin Scalia’s death, Republicans claimed Obama did not have the right to appoint a replacement and this should be left to the next President. The justified their view by asserting that because Scalia died in early February 2016 Obama had slightly less than one year left in office. Since the Republicans held the senate, they were able to refuse to hold hearings and President Trump filled the vacancy.
Supreme Court Justice Ruth Ginsburg died on 9/18/2020. President Trump immediately said he wanted the new judge sworn in “without delay” and Senator Mitch McConnel, who blocked Obama’s efforts to appoint a replacement for Scalia, said he would act on any nomination. The Democrats, in general, think that the replacement should be made by whoever wins the 2020 election. As would be expected, people are using the Republican arguments from 2016 against them. The Republicans are, obviously enough, not accepting their own arguments.
Their failure to accept the arguments now that they made then does not prove that their arguments were bad then or good now. To think that because they reject the arguments now, the arguments were not good when they were made would be fall into the inconsistency ad hominem. One version of this fallacy occurs when it is concluded that a person is wrong now because what they claim now is inconsistent with what they claimed before. While inconsistent claims cannot both be true (though they can both be false) showing inconsistency does not show which claim is false. So, the Republicans could have been wrong then and right now. Or vice versa. But they cannot be right then and wrong now—unless there is a relevant difference that would justify the difference.
The obvious “relevant” difference is that in 2016 delaying the nomination was advantageous to the Republicans while in 2020 it is advantageous to rush the nomination. While this provides a pragmatic difference, it is not a principled difference. While I have many obvious flaws, I do strive to be consistent in my principles and only change them when doing so is justified. For example, in my youth I went through an anarchist phase—but learning more political philosophy resulted in a principled shift in my views. So, what was my position in 2016?
My position was that the Constitution should be applied consistently, and I did the obvious thing: I looked at the Law as Written.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
While I was an am not a constitutional scholar, I could and can read English well enough to see what the Constitution specifies about this matter. The president unambiguously has the power to nominate Judges of the Supreme Court. When Obama was the President, he had the constitutional right to make the nomination. Now that Trump is President, he has this power. But the opening is only there because the Republicans refused to even hold hearings on Obama’s nominee and this would indicate that they accept that the senate has the power to do just that. This view is based on what the text says about the role of the senate.
The text is clear that the appointment of the Judges of the Supreme Court requires the “advice and consent” of the Senate. Since the constitution does not actually specify the process, the Senate has created its own confirmation rules. In general, the approval process has been relatively rapid in the past—so there was no good argument based on there not being enough time to conduct the process. There have been other appointments made in the last year of a President’s term before—so an appointment by Obama would have been consistent with past precedent.
But the Senate makes its rules and they have every right to do what they wish within the limits of the Constitution. This would certainly open the door to running out the clock on hearings or even refusing to hold them. However, the Republican refusal to hold a hearing was problematic. The text certainly indicates the Senate is to provide its advice and give or withhold its consent. The text does not specify and option for refusing to consider a nominee or blocking them endlessly. This, as some would argue, would seem to be simply refusing to do their job.
However, it could be claimed that the refusal to hold hearings for Obama’s nominee was withholding consent, and thus was within their power. Following the precedent set by the Republicans, the Democrats would be just as justified in delaying proceedings. After all, if the Senate has the right to block or delay nominations, then it has that right regardless of whether it is the Democrats or the Republicans engaged in obstruction.
My view then and now is that since the President has the right to nominate and the Senate has the role of advice and consent (or refusal of consent), the Senate is obligated to consider the nomination made by the president. Refusing to do so or running out the clock would be a failure of their specified duty. As long as the president is president, they have the right to exercise the powers of their office and that includes nominating a supreme court justice. As such, Trump has the right to make his nomination and the senate is obligated to provide its advice and consent. That was my position in 2016 and it is my position now.
The obvious objection to my view is to point out that the Republicans blocked Obama in 2016 and thus set the standard for how nominations are to be conducted. As such, the same should apply in 2020: the nomination should belong to whoever is elected in 2020.
I believe that principles should be maintained even (or perhaps especially) when others act in unprincipled ways. Two wrongs, as they say, do not make a right. There is, however, an obvious problem here. Those who act in accord with principle and are consistent would seem to be at huge disadvantage relative to the unprincipled, especially when the unprincipled face no consequences for their actions.
To use a low-stakes example, think of someone who changes the rules of a game you play with them, so they always have an advantage. When you try to play by the changed rules, they change them back when it suits them. When you complain and try to get the other players to insist on consistency, they just give you a smug smile and say, “nothing you can do about it.” The only reason for them to play fair would be from ethics; but they do not seem to have those. The sensible thing to do would be to refuse to play with someone so unprincipled. Unfortunately, politics is a game one cannot choose not to play—at best, you can try to choose your role.
One could hope that in the long run principle will win out and the unprincipled will reap the consequences of their misdeeds. But this is not something to count on. One could play the game as the current Republicans play it (and some Democrats as well): abandon consistency and ethics in order to “win.” This makes “profit the measure of right” and would take us back into the state of nature—something that consistent laws is intended to avoid.
In closing, my principled view is that Trump has just as much right as Obama had for his nominee to have a proper hearing. But I am concerned that the Republicans might provide a compelling moral reason to shift my principles. If I were forced to play a game in which the other player cheats without consequence, then it might become right to change how I play the game. But I would want to win only to be able to make the game as consistent and ethical as possible.