Democrats shouldn’t be hypocrites about the Supreme Court, either

Is Sen. Thom Tillis hypocritical for saying he’ll confirm whomever Donald Trump nominates for the Supreme Court, four years after joining Republicans in blocking Barack Obama for doing the same? Of course.

So is Senate Majority leader Mitch McConnell. So is Senate Judiciary Committee chair Lindsey Graham, who four years ago invited people to call him unprincipled if he let an election-year nominee get a Senate vote. So is any Republican who vowed then to block Obama’s Supreme Court nominee, then followed through on it when the president nominated Merrick Garland in March 2016.

Hypocritical? Absolutely. Surprising? Not at all. But the rest of us should be consistent, too.

In 2016, the editorial boards at North Carolina’s two largest newspapers were appalled at Republicans obstructing the president’s nomination to the Court. We called it “absurd” and “corrosive.” We said Tillis and fellow N.C. senator Richard Burr shouldn’t go along with it.

In Raleigh, the board wrote: “Senate Republicans and Democrats have over the nation’s history confirmed nominees of presidents with whom they differed, in the belief that a sitting president has the right to name judges inclined toward that president’s philosophy. Now, GOP leaders apparently want to toss that custom out the window in hopes a Republican will be elected president and could name another conservative to the court.”

In Charlotte, the board wrote: “Republicans also say it’s unfair to have a president who’s leaving office in less than a year nominate a Supreme Court justice whose impact will be felt for much longer. But presidents have long made important decisions and collaborated on meaningful legislation in the final year of a term. Republicans didn’t mind at all, for example, when President Bill Clinton worked with GOP lawmakers to pass historic welfare reform in mid-1996. Dwight Eisenhower didn’t take his last year off; he fought for the far-reaching Civil Rights Act of 1960, which introduced penalties for anyone obstructing the right to register to vote.”

As much as Democrats might not like it, that’s all still true.

Donald Trump was elected president not for three years, or for three years and some months. And while our Board regularly criticizes his decisions, we don’t believe he should be stripped of the power to make them. Should the Senate declare preemptively that it won’t bring his nominee to a vote - as the Senate did with Obama - it would render him a lame duck before he actually becomes one. That’s still wrong, four years later.

Democrats argue that there’s a difference between making a nomination to the Court with six weeks to go before the election, as Trump would be doing. So what’s the threshold for such nominations? Four months before a presidential election? Three months? Maybe it’s fair to make the case that if a president loses in November, he or she might want to hand the big decisions off to the winner. But at least until that election, the president should get to be president.

That includes nominating a man or woman to the Court, as Trump will surely do in the next week. The Senate, both Republicans and Democrats, should consider that nominee instead of declaring their vote before it’s even made. As for progressives who believe the next Senate should expand the Court if Trump gets to seat three justices? That’s the same kind of intellectual contortionism that they decried four years ago. It’s hypocritical. Go win an election instead.

This story was originally published September 21, 2020 at 12:27 PM.