Ninety years ago, political scientist Harold Lasswell, observed that “political man” is one who has displaced private motives on to public objects and rationalized them in terms of the public interest. While psychoanalyzing our political leaders would be most interesting, the Supreme Court appointment process provides some very clear examples of how political motivations are rationalized in terms of the public interest. Such rationalization typically involves the masking of true motivations by offering ones that are deemed more politically worthy. What results is political casuistry, which might otherwise be recognized as sophistry, or more colloquially abbreviated as plain old BS.
The Supreme Court vacancy process in the last two presidential election years has produced exceptional controversy. In 2016, the death of Justice Scalia on February 13 produced a nomination by Democratic President Obama on March 16, only to be ignored by the Republican-controlled Senate for the remainder of Obama’s presidency. In 2020, the death of Justice Ginsburg on September 18 resulted in a nomination by Republican President Trump on September 26, one that the Republican Senate Majority Leader McConnell has promised to expedite.
It doesn’t take a political scientist to understand what’s up. Both parties are driven to fill federal judgeships, and Supreme Court nominations are especially important. In June of 1968, a presidential election year, Democratic President Johnson moved to fill the Chief Justice position with a sitting justice (Fortas) and submitted a nomination to fill that anticipated vacancy. Opposition to the nomination from Senate conservatives resulted in an effective filibuster, which in that day required a two-thirds vote to overcome. The nomination failed and was withdrawn in early October. The proximity to the election resulted in no further action by the president to fill the Chief Justice position.
Fast forward to mid-March, 2016. President Obama nominates Merrick Garland to replace the conservative icon Antonin Scalia. This would likely produce a 5-person liberal bloc on the Court. What do you, as the Republican Majority Leader in the House, do? With only a two-person majority in the Senate, three could conceivably cross over to vote for Garland. On the other hand, Republicans could conceivably filibuster the nomination, requiring 60 votes to shut down. While keeping the seat vacant means having the Court operate with only eight justices from October until February or later in the 2016-17 term, if Republicans win the presidency, you can keep the Court more conservative than not.
Not following the advice and consent requirement of the Constitution because you want to make certain the vacancy is filled by one with good conservative credentials doesn’t seem like a rationale that will be appreciated by anyone but the conservative base. What the Republicans came up with was this: “The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide,“ said, Majority Leader McConnell. Republicans embraced this rationalization of their real motives. House Speaker Paul Ryan said, “This has never been about who the nominee is. It is about a basic principle . . . We should let the American people decide the direction of the Court.” Thus, the principle is clearly enunciated—in a presidential election year, we wait to let the next president choose. Do they really believe what they say, or is this just BS? It’s not casuistry yet. One needs a second or even third opportunity to apply the principle. We must wait until 2020 to find out. We do know that they didn’t literally mean what they said. The American voters expressed a preference for Hillary Clinton to be president. By the Republican rhetoric, her preference should receive the nomination. What McConnell, Ryan, and other Republicans must have meant to say was, “We should let the American presidential electors decide the direction of the Court.”
Here we are in 2020. And on the very day that Justice Ginsburg died, McConnell said,
Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.
When confronted with the principle espoused in 2016, McConnell argued his stance was not hypocritical, because in 2020, Republicans control both the White House and the Senate, unlike 2016 when the Democrats held the White House and the Republicans the Senate. The goal, of course, has not changed, namely, fill the Court with as many Republican appointees as possible. But a new rationalization is needed, the “it’s a presidential election year, so we should let the people have their say” won’t work. Some new principle is needed. Bring on the casuistry.
This time, multiple rationales come forth. McConnell provided one. Republican Senate Ted Cruz brought on another, noting that nominations in presidential election years are not uncommon, noting there have been 29 presidential-election year nominations. A closer look, however, reveals that 13 of those 29 nominations were actually made after the election, not before it. Another 13 occurred in the first half of the year. The other three pre-election nominations came on July 14, July 18, and August 16. This most recent nomination of September 28 is only 36 days before the election. Moreover, the past 100 years have produced nominations in presidential election years only four times. Cruz’s effort to portray this nomination in a presidential-election year as not uncommon is disingenuous. Casuistry strikes again.
Another popular Republican rationalization for filling the vacancy this close to the election argues that the 2018 midterm election provided a mandate to do so. As Republican Senator Tom Cotton said, “There could not have been a clearer mandate, because the American people didn’t just reelect Republicans. They expanded our majority.” This assertion fails on two levels. The gain of two seats in the Senate was a distinct underperformance for the Republicans. Of the 35 Senate seats up for election, 26 were held by Democrats, including ten in states that Trump won in 2016. Republicans had a legitimate hope of achieving a ten-seat gain in the Senate. Instead it was only two, taking four seats in red states that had Democratic senators but losing two that flipped Democratic. If any message was delivered to the Senate in 2018, it was that Republicans were in trouble. Cotton’s mandate claim also fails because there is no such thing as a mandate for the Senate from the American people. Senators are not selected by the American people. They are elected by voters of their respective states, voters whose motivations can vary considerably. Moreover, close to a third of the states don’t even elect a Senator in any given election year. The Senate can never claim to have a mandate from the American people.
If you want to know what the American people want the Senate to do, ask them. To do so found that in 2016, the preference was for the Senate to consider the nomination of Merrick Garland. In 2020, it appears the preference is for the nomination to fill the Ginsburg vacancy be made by the winner of the 2020 presidential election.
What is preferable to rationalizing one’s motives by appealing to the public interest is honesty. Put simply, it’s the president’s job to nominate and the Senate’s job is to confirm or reject that nominee. The Senate can choose to do nothing, or it may move it along as it wishes. The important thing is to have someone on the Court who has the right values. Conceivably, for example, if Obama had withdrawn the nomination of Garland and put a recognized conservative jurist in his place, the Republicans might have moved on it. Of course, that wasn’t going to happen.
Waiting until after the election does seem like the right thing to do. Perhaps a principle should be developed and adhered to. The median number of days between nomination and confirmation of the most recent nine justices is 77. Perhaps three months prior to the election might serve as a suitable nomination-free period.
Regardless, here we are. The Republicans have proceeded. They will almost surely confirm Barrett to replace Ginsburg. But if the Democrats win both the presidency and the Senate, there could be hell to pay for the Republicans. With respect to the Court, that could involve anything from withdrawing certain types of cases from Supreme Court jurisdiction to increasing the size of the Court. Again, political casuistry should flourish on both sides, but the best strategy may be just to tell the truth about your motivations.
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