As the body of Ruth Bader Ginsburg lay in repose in the U.S. Capitol rotunda — the first American woman to receive such an honor — the Senate is in a race to replace the distinguished jurist at all costs.
The Star Tribune Editorial Board argued during the Merrick Garland fiasco in 2016 that there is no magic time limit on presidential powers. President Donald Trump has every right to nominate a potential replacement for Ginsburg before the election, and the Senate — as we wrote four years ago — should hold hearings and a vote.
But let's pause a moment to consider the hypocrisy of Senate Republicans, led by Mitch McConnell of Kentucky. In 2016, when Justice Antonin Scalia died nine months before the end of President Barack Obama's second term, Republicans were quick to declare the vacancy to be "the Scalia seat," arguing that to fill it with a justice less conservative would be a travesty.
McConnell went further. The voters, he said, had the right to weigh in, by having the next president make the pick. Garland was denied so much as a single hearing. It should be noted that by blocking Garland, the Senate left the Supreme Court at eight members in an election year, when it might have been called on to decide the outcome of a contested presidential election.
As brazen as the move was, it worked: Senate Republicans were able to hand Trump the plum of a Supreme Court pick.
Curiously, with early voting already underway for the 2020 presidential election, McConnell now rests his argument on an entirely different principle. Now the Senate, he said, has an obligation to fill the seat quickly, lest the court be at a potential tie in determining a contested election.
Now the overriding principle, according to Republicans, is that a president backed by a Senate majority of the same party can proceed no matter how late in the term. There is a dangerous standard being set by the Senate, and it is this: That no president can reasonably expect to appoint a Supreme Court justice unless his or her party also controls the Senate.
The Editorial Board supported Obama's authority to appoint a Supreme Court Justice in 2016. It would be inconsistent for us to take a different position this year. We'll leave it to McConnell to behave hypocritically now.
Republicans, in what can only be described as an exercise of raw political power, are turning their backs on their own self-described principle for the chance to gain another seat on the court — a court intended by the founders to rise above partisan differences in its application of the law.
It is clear Trump and McConnell will proceed, and the Senate will likely hold hearings and a vote before the election. Senate leaders had that same obligation in 2016.
In 2018, the Editorial Board called for an overhaul of the nomination process itself, for thorough and independent investigations of nominees and for a restoration of the 60-vote rule that Republicans jettisoned in order to close debate on the confirmation of Neil Gorsuch to fill the vacancy left by Scalia.
Both of those recommendations would still serve to restore badly needed integrity to this process and the court itself.
