Partisan Poppycock Does Not Trump the Constitution on SCOTUS Picks
The process for filling a Supreme Court vacancy is straightforward: The president chooses a new justice “with the advice and consent of the Senate.” Any other conditions, including those imagined by Republicans in 2016 or by Democrats now, are nothing but self-serving nonsense.
Senate Majority Leader Mitch McConnell (R–Ky.), who has promised a vote on President Donald Trump’s nominee to replace Ruth Bader Ginsburg by the end of the year, has been accused of forsaking the supposed norm he defended in 2016, when he blocked consideration of Merrick Garland, Barack Obama’s choice to replace Antonin Scalia. Yet McConnell’s position now is arguably consistent with the one he took then. That does not mean it makes any sense.
While most Democrats and some Republicans remember McConnell as saying the Senate should not consider a Supreme Court nomination in a presidential election year, his stance was more ambiguous. He also said a president should not be allowed to fill a vacancy close to such an election when the Senate is controlled by the other party.
“Who ought to make the decision, a lame-duck president on the way out the door, or the president we’re in the process of electing right now?” McConnell asked on CNN four days after Garland’s nomination. “What is the tradition?”
McConnell cited two purported traditions. “It’s been 80 years—80—since a vacancy created in a presidential election year was filled,” he said. “You h
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