Just as it didn’t take long for Republicans to invoke a made-up historical precedent in order to block President Obama from appointing a successor to the late Justice Scalia, so it didn’t take long for political writers to decide that there was nothing surprising about invoking this fake rule: if the situation were reversed, the logic goes, Democrats would do the same thing. Vox’s Zack Beauchamp offered the pithiest version of this argument:
Does anyone doubt that this Supreme Court debate would be the same if it were President Romney and Majority Leader Reid?
— Zack Beauchamp (@zackbeauchamp) February 15, 2016
I’ll confess to finding this all somewhat puzzling. In the insistence that this maneuver is wholly unsurprising, I sense a desire to deflate liberal complaints about the GOP’s refusal to even consider any Obama nominee. Everyone cares about the composition of the Supreme Court, and nobody would happily hand control of it over to their opponents. On this view, the GOP’s actions are not only understandable; they’re maybe even justified—or, at least not deserving of condemnation by liberals, who would behave in precisely the same way.
But this seems wrong, both as a factual assertion and as an almost-exculpatory logic. A Democratic Senate majority might ultimately reject a Republican President’s nominee, although there’s little in recent history to suggest they’d block anyone who was qualified and not obviously an extremist. (Many liberal senators cast “no” votes, but in the end, Democrats did not block the nominations of John Roberts and Samuel Alito.) In all likelihood, the situation would produce a more moderate conservative nominee, with intense elite pressure on Democrats to approve him or her. But even if Democrats decided to consider and ultimately reject the nominee in hopes of a favorable election outcome, that’s still a far cry from denying altogether the President’s right to have a qualified nominee considered.
In the more likely event that a moderate conservative were approved by a Democratic Senate, there would certainly be grumbling from some liberal members and on the left generally. But the argument for a good-faith consideration of qualified nominees is based in fundamental principles that everyone ought to accept. A duly-elected President’s nominations are democratically legitimate, and they don’t become any less legitimate simply because the President’s term is nearing its end. Constitutional powers don’t fade based on what month it happens to be. And that’s precisely why the argument of Mitch McConnell, Ted Cruz, John McCain, and other leading Republicans is so ridiculous: Barack Obama is President until his successor is sworn in, and his nominations deserve consideration, period. This would be true whether Scalia had died six months ago or six months from now—or, for that matter, if any other justices died before the end of Obama’s term.
This might suggest that there are flaws in lifetime appointments, but that’s a different argument. The “election year” rule that Republicans just invented is no rule at all, but rather a cover for obstructionism. Since time really has nothing to do with it, the rule gives no reason why Democrats shouldn’t return the favor for the first year of the Cruz administration—or, if they like, President Cruz’s whole term. After all, what are four years of dysfunction compared to thirty years of disastrous jurisprudence?
Of course, there are plenty of good reasons why Democrats should, and probably would, refuse to go down that road. Dysfunctional institutions are bad in and of themselves, but the attack on the democratic legitimacy of the presidency is far more disturbing. The U.S. is already badly beset by the rise of a “take my ball and go home” attitude rooted in the refusal to accept the inevitable defeats of democratic politics. The President names Supreme Court nominees, and even if there’s no presumption of approval, the Senate is at least expected to consider them. If that holds when our side wins, it also holds when our side loses.
The destruction of institutional norms is a well-documented feature of contemporary Congressional politics, but as Democrats have consistently shown, they’re far less willing than Republicans to push the system to its breaking point in pursuit of ideological victory. Government shutdowns, the crippling of key agencies through blocked appointments, flirtations with default—these are, so far, Republican tactics. That’s understandable, since the Republican Party has less to lose from dysfunctional governance and is home to many more extremists willing to damn the consequences. This asymmetrical attitude towards broken government is, as others have pointed out, yet another instance when both sides don’t do it. Greeting this latest gambit with a shrug only furthers that misperception and encourages further governmental paralysis, which ultimately harms liberals more. Besides: even if Democrats did do this, they’d be wrong. We should say so if it ever happens, just as we should say so now.