Battle lines drawn on precedent in Supreme Court fight

Partisan battle lines are being drawn over President Trump’s plan to nominate a replacement for the late Supreme Court Justice Ruth Bader Ginsburg less than two months ahead of Election Day with a focus on the precedent Senate Majority Leader Mitch McConnell (R-Ky.) set four years ago by blocking then-President Obama’s nominee. 

Democrats argued on Sunday that McConnell’s vow that the Senate would vote to confirm Trump’s nominee is hypocritical. 

Republicans, meanwhile, sought to distance themselves over accusations of hypocrisy, and dismissed contradictory comments made four years ago when Obama nominated Merrick Garland to fill the vacancy on the court after the late Justice Antonin Scalia died. 

“Well of course it’s superficially hypocritical, isn’t it,” former President Bill Clinton, who nominated Ginsburg in 1993, said Sunday on CNN’s “State of the Union.” 

“This is what they do. I think both for Sen. McConnell and President Trump, their first value is power, and they’re trying to jam the court with as many ideological judges as they can, Clinton added. 

Clinton also questioned what had changed since 2016, when McConnell said the “American people should have a voice in the selection of their next Supreme Court justice.” 

“I don’t know what’s happened to make him stop trusting the American people. but apparently when it’s to his advantage the people are not entitled to a say,” Clinton added. 

Former Democratic presidential nominee Hillary Clinton said the GOP “made a new precedent” to wait for a new president before confirming a nominee ahead of an election. 

“They talk about, ‘Well you know we had other standards before,’” she said on NBC’s “Meet the Press.” “Well they made a new precedent, and that new precedent, which they all defended incredibly passionately, is to wait for the next president whoever that is to make the nomination.”

She also said the GOP effort to fill the vacancy is “another blow to our institutions.” 

“Our institutions are being basically undermined by the lust for power – power for personal gain in the case of the president or power for institutional gain in the case of Mitch McConnell – at the cost of ensuring that our institutions withstand whatever the political winds might be,” said Hillary Clinton, who also served as secretary of State in the Obama administration.  

Sen. Amy Klobuchar (D-Minn.), a member of the Senate Judiciary Committee, similarly said on CNN that “a new rule was set” by Republicans in 2016 in blocking a vote on Obama’s nominee. 

“They set this precedent, they can’t mess around and use raw political power right in the middle of an election,” she said, noting that voting has already begun in her state. 

Since Republicans hold a 53-46 majority in the upper chamber, even if all members of the Senate Democratic caucus oppose Trump’s pick, four Republicans would need to defect to block Trump’s nominee. 

Sen. Chris Coons (D-Del.) called on Senate Republicans to “live with the precedent they set,” and not rush a confirmation for Ginsburg’s successor. 

“I’m going to be working this weekend, this week to reach across the aisle and see if I can persuade some friends to respect tradition, to respect the precedent they set in 2016 and to let the voters decide,” Coons said on “Fox News Sunday.”

Sen. Susan Collins (R-Maine.), one of the most vulnerable GOP senators facing reelection in the fall, has said the Senate should not vote to confirm Ginsburg’s successor before the election. Sen. Lisa Murkowski (R-Alaska) also said, ahead of reports of Ginsburg’s death, that she would not vote to confirm a Supreme Court nominee before the election. 

But many Republican senators have voiced support in pushing a quick vote on Trump’s nominee, and have dismissed the notion that doing so is hypocritical in light of comments they made voicing the opposite position in 2016 to block Obama’s nominee. 

Fox News’s Chris Wallace pressed Sen. Tom Cotton (R-Ark.) on his comments from 2016. 

“Why would we squelch the voice of the people? Why would we deny the voters to weigh in on the makeup of the Supreme Court?” Cotton said on the Senate floor in 2016, after Scalia’s death and Obama’s nomination of Garland. 

“You don’t see any hypocrisy between that position then and this position now?” Wallace asked.

“Chris, the Senate majority is performing our constitutional duty and fulfilling the mandate that the voters gave us in 2016 and especially in 2018,” he said, referring to the midterm elections after Justice Brett Kavanaugh’s confirmation hearings. 

Wallace pressed Cotton, asking if he would “still think it would be proper” for the Senate to confirm a Trump nominee to the court if the 2020 election resulted in a new president and Democratic majority in the upper chamber. 

“Chris, as I said, we are going to move forward without delay and there will be a vote on this nominee,” the senator responded

“But to the point Donald Trump’s gonna win reelection, and I believe Senate Republicans will win our majority back because the American people know that Donald Trump is going to put nominees up for the federal courts who will apply the law, not make the law,” he added. 

Sen. Roy Blunt (R-Mo.) similarly defended his decision supporting a vote on Trump’s nominee despite blocking Obama’s by stating that it is in the “tradition of the country” for the Senate to support nominees of presidents’ of the same ruling party. 

“Two things have to happen for a person to go on the Supreme Court. In the tradition of the country, when the Senate and president were in political agreement no matter what was the election situation, judges went on the court and other courts. When they weren’t in agreement, they didn’t,” Blunt said on CBS’s “Face the Nation.” 

“And we were in a situation in 2016 where the White House was controlled by one party, the Senate by another, and the referee in that case was going to be the American people,” he continued. “In this case, both the White House and the Senate have some obligation to do what they think in the majority in the Senate is the right thing to do, and there is a Senate majority put there by voters for reasons like this.”

Sen. John Barrasso (R-Wyo.) said on NBC’s “Meet the Press” confirming a justice weeks before the 2020 election is “completely consistent with precedent.” He argued that “if the shoe were on the other foot” and Democrats had the White House and Senate, they would make the same move.

Sen. Ted Cruz (R-Texas) also said in ABC’s “This Week,” that he believes Republicans will have the votes to confirm a Supreme Court nomination. 

Marc Short, Vice President Pence’s chief of staff, said on CNN Trump “is prepared to make a nomination very soon.” 

Short also said he “rejects the notion” that a vote on Trump’s nominee is hypocritical, adding that there is “historical precedent’ for the president to nominate a replacement. 

“When you have a party in power in the Senate whose job it is to advise and consent and confirm the president’s nominee, it continually has shown, historically, that that is the job of the Senate to confirm the president’s nomination. And history shows, it’s the president obligation make a nomination,” Short said. “When you have a party in different power in the United States Senate, those nominations have not moved forward. And that’s exactly what Leader McConnell did in 2016.”

Bill Clinton argued that McConnell’s flip-flop over whether a president should nominate a justice before an election will “further spread cynicism in our system.” 

“You can’t keep a democracy if there is one set of rules for one group and another set for everybody else,” Clinton said on CNN.