He’s been making this point since the news of Ginsburg’s death broke. And I can’t understand why. It’s the worst possible argument in defense of what the GOP is doing.
We all know why they’re filling the seat. They have the votes to do it, they may no longer have the votes three months from now, and this is a once-in-a-generation opportunity to create a six-justice conservative majority. It’s raw power politics, no more complicated than that. Does it make them look like hypocrites after they held Scalia’s seat open four years ago? Sure. Is that hypocrisy hurting them in swing states? Maybe. The two new polls of Pennsylvania that I wrote about this morning found majorities there prefer to have Biden or the next president fill the seat, with many more Biden supporters saying the vacancy makes it more important that their guy win the election (61 percent) than Trump supporters who say so (41 percent).
Republicans are filling the seat because they can. But they can’t be quite so blunt as that in their messaging, which is why Cruz and others are left grasping for “neutral” rationales. Their best option is probably just the “McConnell rule” from 2016. Americans elected a Democrat president in 2012 and a Republican Senate majority in 2014; when Scalia’s seat opened up in 2016, it was only fair to let voters resolve that deadlock by choosing which party should fill the seat. Then Americans elected a Republican president in 2016 and increased the Republican Senate majority in 2018; when Ginsburg’s seat opened up, there was no deadlock to resolve. Voters had already decided that they wanted Republicans to fill it.
Is that logic strong enough to convince people that Trump and the Senate GOP should go ahead and ram Barrett’s nomination through in late October after millions Americans have already voted on who should be the next president? Not all people, no. But it’s the strongest “neutral” fig leaf they have for their power play. Joni Ernst used it last night in a debate with her Democratic opponent in Iowa when asked why Republicans would insist on filling the seat so close to Election Day. “Because we can, bro,” wouldn’t cut it as an answer. So instead she cited the difference between divided government in 2016 and unified government now. She even noted that it was Joe Biden himself who had once supported that standard, a nice touch.
Why isn’t Cruz making that same point instead of sticking with this pitiful argument that we can’t afford a 4-4 Court post-election? Watch the clip (and turn up your sound, as the audio’s poor), then read on.
Sen. @TedCruz: “The entire reason the Senate should act and should act promptly to confirm a ninth justice is so that the Supreme Court can resolve any cases that arise in the wake of the election.” pic.twitter.com/jYYd83E8KH
— The Hill (@thehill) September 29, 2020
The painfully obvious question: Why didn’t Cruz care about having a 4-4 Court in 2016, when the GOP roadblocked Merrick Garland? A Politico reporter remembered this afternoon that not only did he support blocking Garland, knowing that would leave the Court deadlocked after Election Day, he suggested holding the seat open even longer in case Hillary Clinton won and the GOP retained a Senate majority.
On Wednesday, speaking to reporters in Colorado, Cruz offered perhaps his boldest gambit yet by suggesting it’s in line with historical precedent for Republicans to keep the Supreme Court vacancy unfilled under a new president, despite the GOP’s vow that it would block a nominee only until after Obama leaves office.
“There is long historical precedent for a Supreme Court with fewer justices. Just recently Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job,” Cruz said while campaigning for underdog Senate candidate Darryl Glenn, according to a transcript provided by his office.
On Earth 2, we’ve had a 4-4 Court since 2017 because a critical mass of Republican senators led by Cruz refused to confirm any of President Clinton’s nominee. Now here he is, four years after he helped ensure that SCOTUS would have eight justices to resolve any post-election disputes between Trump and Clinton, insisting that it would be unthinkable to allow eight justices to make that call in 2020.
At what point does hypocrisy become so egregious that it amounts to insulting the intelligence of your constituents?
The current Court isn’t even really 4-4, as it was after Scalia’s seat went vacant. It’s 5-3. You may not like John Roberts but he’s still more likely to vote with the other conservatives than to vote against them.
Two other points to bear in mind here. One: If, God forbid, we really did end up with another Bush v. Gore scenario and an eight-person Court this time, one would hope that the Supremes would recognize that a 4-4 decision punting the matter to the appellate courts just wouldn’t hack it. Americans would need clarity. The decision would need to be 5-3 or even more lopsided. The Court has managed unanimous majorities before in fraught cases (Brown v. Board of Ed, U.S. v. Nixon) precisely because they knew that a divided bench would weaken respect for the outcome and the Court’s institutional legitimacy. I doubt we’d see a unanimous majority in an election case, but I have just enough faith left in SCOTUS to believe they’d manage a clear majority for whatever the ruling was.
Two: It does Amy Coney Barrett no favors to frame the urgency of confirming her in terms of her potential role in deciding election cases. Cruz pays some lip service in the clip to the fact that of course we wouldn’t expect her to rule in a particular way due to partisan considerations, but Barrett certainly understands that if she casts a vote in an election dispute that favors Trump, half the country will never look at her the same way again. A 5-4 or 6-3 party-line conservative majority in Trump’s favor would wreck whatever’s left of the Court’s legitimacy for all but diehard righty partisans, especially in light of the hardball bizarro-Garland tactics used to confirm her. By accepting the nomination under these circumstances, as Trump screams that the vote is rigged but that he’s counting on his new nine-justice Court to be “fair” to him, wink wink, she may soon find herself in the eye of a political storm unlike anything the country has seen in ages. The least Cruz could do for her is to stop talking about election cases that are destined to call her integrity into question and start talking her up as a nominee. “We’re confirming her because she’s a once-in-a-lifetime candidate who’ll do good for the people of this country for decades to come,” he might say. Period, the end.
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