This editorial was published by the Post Register of Idaho Falls.
More than any national politician in recent memory, Senate Majority Leader Mitch McConnell has laid waste to the norms that once guided his chamber.
McConnell led the unprecedented charge to block President Barack Obama’s district and circuit court nominees. Democrats eventually responded by ending the filibuster on judicial nominees. Then, nearly a year before the election, McConnell blocked Supreme Court nominee Merrick Garland — a deliberately moderate pick — using the justification that the people should be given a voice by waiting for the next election.
Once Donald Trump had won the Electoral College, while losing the popular vote by a margin not seen in more than a century, McConnell ended the filibuster on Supreme Court nominees.
Now, McConnell has made clear he will move to confirm a replacement for recently deceased Justice Ruth Bader Ginsburg — an announcement so rushed he couldn’t even wait until after the funeral — in an obviously hypocritical reversal of his stance on Garland.
Nothing better should be expected of McConnell, who has spent his entire career as an unprincipled, nakedly partisan warrior. Treating governance as if it were a sport, his side’s victory is the only thing that matters to him.
But could better be expected of Sen. Mike Crapo?
“The next Supreme Court justice will make decisions that affect every American and shape our nation’s legal landscape for decades. Therefore, the current Supreme Court vacancy should be filled by an individual nominated by the next President of the United States,” Crapo said.
Except, he didn’t say that at the end of September 2020. He said it at the beginning of March 2016. Is Crapo’s word as good two months before this election as it was nine months before the last?
McConnell’s shallow justification for his about-face is that both the White House and Senate are held by Republicans. This reveals what the true principle guiding his action has been all along: If you can do it, you should.
If Crapo and Sen. Jim Risch follow McConnell’s lead and confirm a new justice, they will do it with eyes wide open. They know what it means.
It means that the court will be seen as illegitimate by a majority of Americans. Polls show most believe Ginsburg’s replacement should be nominated by the winner of the next presidential election.
It means an era unguided by norms of respect for the minority — at a time where the GOP is increasingly likely to find itself in the minority. A Republican candidate has won only one presidential popular vote in the 21st century. Younger generations skew heavily and increasingly Democratic.
Risch, in particular, has been telling every audience he can find that if the GOP loses the U.S. Senate this year they will never regain it — which is histrionic but has a bit of truth in it. Democrats who once scoffed at the idea of ending the filibuster are seriously considering it, given McConnell’s unrestrained use of it while in the minority and willingness to bulldoze it while in the majority. Others have floated the idea of granting statehood to Washington, D.C., and Puerto Rico, both of which have larger populations than some Republican states.
And in this latest bout of hypocrisy, when Democrats no longer think Senate Republicans have any good faith left, the option of court-packing —adding new justices to the Supreme Court, which can be done with a simple Senate majority — is for the first time in nearly a century under serious consideration.
Is this the era in which Crapo and Risch want to cement McConnell’s standard? Is this the time when they want America to be governed by the old saying of Thucydides: “The strong do what they can, and the weak suffer what they must?”
It could well mean trading a lasting 5-4 Republican majority for a 7-6 minority within a short time frame, a forever-changed U.S. Supreme Court and an American people divided with no clear path toward reconciliation.