This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It first appeared at Balkinization.
There are only so many ways to defend behaviors alleged to violate a political or constitutional norm.
You can, for instance, argue that the other side’s wrongdoing justifies or excuses an otherwise impermissible response. You can argue that extraordinary circumstances or considerations warrant a temporary departure from the norm. Or you can argue that your behavior does not in fact violate the norm, once the behavior or the norm is properly (re)described.
Over the past few days, Republican politicians and pundits have cycled through each of these argument types in defending themselves against accusations of violating the “McConnell rule.”
Invoking a self-help rationale, Senator Lindsey Graham tweeted that he will move forward on President Trump’s nomination to replace Justice Ginsburg because “Harry Reid changed the rules [in 2013] to allow a simple majority vote for Circuit Court nominees” and “Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open.” Yet the basic problem with this argument is that, across all areas of life and law, otherwise impermissible countermeasures must be proportionate to the other side’s alleged wrongdoing, and the wrongs cited by Graham have already been redressed (and then some). Mitch McConnell changed the rules in 2017 to allow a simple majority vote for Supreme Court nominees; Senate Republicans have exploited the lack of a filibuster for lower court nominees in record-breaking fashion; and Kavanaugh is, of course, now on the Court. Even on Graham’s own account, there is no Democratic tit that could legitimate this Republican tat.
Invoking a force majeure–style rationale, Senator Ted Cruz suggested that President Trump’s nominee must be confirmed before November because “we cannot have Election Day come and go with a four-four Court,” which would risk a deadlock on election disputes and thus “a constitutional crisis.” Yet the basic problem with this argument is that it would have applied to the Merrick Garland nomination as well. The notion that a 5-4 Supreme Court decision handing the election to Trump is a solution to constitutional crisis is also highly contestable, to put it mildly. One could just as easily characterize such a decision as a precipitator of constitutional crisis — or indeed as a crisis itself.
Finally, and most common of all, Republican politicians and pundits have invoked an innocence rationale and explained that the McConnell rule was never meant to apply to a situation like this. As an evidently exasperated former aide to Senator Tom Cotton put it: “The McConnell rule applies when the Senate and White House are controlled by *different* parties, which is obviously not the case in 2020. Journos understand this, but many will deliberately mislead their readers and viewers who do not.” I confess that I had failed to grasp this nuance before, no doubt because the mainstream media bamboozled me. Yet even if it were true that the McConnell rule was formulated in these terms from the beginning — which is far from clear — the basic problem would remain that such a rule makes little sense. The sole coherent basis for the McConnell rule is that by refraining from installing a new justice close to a presidential election, the Senate enhances the democratic character of the Supreme Court selection process. Nothing in this logic ought to turn on which party controls the Senate (while ignoring which party controls the House). If the McConnell rule is to be even plausibly defensible on its supporters’ chosen grounds of democratic theory, it cannot be understood as a principle applicable only to a specific sort of divided government.
In light of these various problems, it seems to me that the most credible Republican defense against accusations of violating the McConnell rule would take a very different and more dramatic form: denial of the premise that Senator McConnell ever adhered to any such rule. For a governmental practice to amount to a norm, the practice must at a minimum be regularly followed out of some sense of normative obligation. Neither criterion appears to be satisfied here. No one has followed the McConnell rule since it was ostensibly created/crystallized in 2016, and no one seems to have internalized it as a precept of political or constitutional morality. You can’t violate a norm that doesn’t exist.
Is there no such thing as the “McConnell rule,” then? Regardless, there are the statements that McConnell and his allies have made about Supreme Court confirmations, which can fairly be enlisted to support a charge of hypocrisy or unfair dealing. But if one concentrates on deeds rather than words, an alternative picture comes into focus: namely, that McConnell has always honored a straightforward principle when it comes to these matters, and the principle is to block as many Democratic nominees and confirm as many Republican nominees as is politically feasible. Every supposed micro-rule guiding his behavior is really just an application of this overarching macro-rule. As President Trump remarked to Bob Woodward, “You know what Mitch’s biggest thing is in the whole world? His judges.”
McConnell may be unusually effective and single-minded in pursuit of “his judges” — the hardest hardball player in the business — but I assume that many Democratic senators subscribe to some version of the inverse principle. Given the amount of power wielded by the contemporary Court and the degree of constitutional polarization that prevails, every justiceship that goes to the other side is nothing short of a disaster. Procedural niceties are a predictable casualty.
I share Justice Ginsburg’s fervent wish that she not be replaced until there is a new president. But if this wish ends up being realized, it will not be because of but in spite of the McConnell rule — the real McConnell rule. Going forward, the only hope of restoring regularity and integrity to Supreme Court confirmations lies in restructuring the justices’ selection process (as through fixed terms or partisan-balance requirements), restructuring judicial review (as through “democratizing” reforms), or both.
David Pozen is Vice Dean for Intellectual Life and the Charles Keller Beekman Professor of Law at Columbia Law School.
