Commentary, Courts & the Law

In SCOTUS controversy, the hypocrisy is all red

As part of an P.R. effort to quell public outrage at their 180 degree flip-flop over the appropriateness of confirming a new Supreme Court Justice during a presidential election, Republicans, their allies and some ill-informed media types have attempted to argue as a defense in recent days that both parties are acting hypocritically.

You’ve probably read or heard this argument somewhere (I know I have in some of the hate mail that comes my way). It goes something like this: “Those blankety-blank Democrats would have done the same thing if the roles were reversed. Look at what they’re doing now. By arguing that no replacement for Ruth Bader Ginsburg should be considered until 2021, they’ve demonstrated their hypocrisy.”

It’s hard to know whether to laugh or cry at this “logic.” It’s akin to arguing that victim of a physical assault is just as guilty as his attacker, because he bore ill will toward the person who attacked him and might have been the perpetrator if the circumstances were different.

Earth to the GOP and its apologists: Your argument might hold some validity if it was the Democrats who had held up a previous confirmation process on the grounds that it conflicted with an election. Maybe. The fact, however, is that they did no such thing.

What happened in 2016 was that U.S. Senate Republicans announced a new standard and established a new precedent by refusing to consider President Obama’s moderate and highly qualified nominee, appeals court judge Merrick Garland, during an election year.

North Carolina’s Thom Tillis helped spell out this change when he stated that it would be wrong to have a “partisan, divisive confirmation battle during the very same time the American people are casting their ballots to elect our next president.”

There are many intelligent observers across the nation who believe that shift was an unwise and destructive change, but the simple fact is that it happened.

Having established this new standard and precedent, the Republicans shouldn’t be free now to simply abandon it and return to the old way of doing things out of political opportunism and convenience. And Democrats — the victims in 2016 of this shift — certainly can’t and shouldn’t be blamed now for demanding that Republicans lie in the new bed they have made.

The simple fact is that for democratic government to work properly, precedent and rules must mean something. Republicans, however, have demonstrated that the only rules and precedents they respect are the ones born of raw power.

On shudders to think what new assaults on our Constitution that a justice confirmed under such dishonest circumstances will endorse.

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