What Boozman and Cotton should have said in 2016
Arkansas Sens. John Boozman and Tom Cotton and other Republicans probably should have said something like the following in 2016:
“I will not support anyone President Obama nominates because the election is nine months away, and I hope the Republican wins and nominates someone I prefer. If there’s a vacancy in 2020 with a Republican president and a Republican Senate, the circumstances would be different and I’d vote for the nominee.”
That’s not exactly what was said four years ago after Justice Antonin Scalia died Feb. 13, 2016, and President Obama later nominated Judge Merrick Garland. Republicans never gave him a hearing, arguing, mostly, that it was a presidential election year and the voters should be heard.
Boozman, for example, released a statement March 16, 2016, saying, in part, “Our country is very split and we are in the midst of a highly contested presidential election. My colleagues and I are committed to giving the American people a voice in the direction the court will take for generations to come.”
Here’s Cotton on March 9 on the Senate floor: “In a few short months, we will have a new president and new senators who can consider the next justice with the full faith of the American people. Why would we cut off the national debate about this next justice? Why would we squelch the voice of the people? Why would we deny the voters a chance to weigh in on the make-up of the Supreme Court?”
This time the election is six weeks away. Some states are already voting.
There are important differences. As Cotton noted on the Senate floor, Obama was a “lame duck” in the last year of his second term. And in 2016, the president was a Democrat while Republicans held the Senate. Even though that’s been the case many times and seats have somehow been filled, Republicans decided to wait and let the election process break the logjam. It did. Republicans now control both the presidency and the Senate.
One downside was that Cotton’s “few short months” was actually eight months before the election and 10 months before the new president took office. The Supreme Court had eight justices for 14 months.
What’s the historical precedent? As reported by National Review, there have been 29 Supreme Court vacancies in presidential election years – 19 when the president’s party controlled the Senate. Seventeen of those 19 nominees were confirmed, eight of them after the election and three after the president lost.
So this is easy, right? Fill the seat. Republicans could almost assure a conservative Supreme Court majority for decades, which could affect national life for centuries.
On the other hand, according to National Review, no nominee has ever been confirmed between mid-July and the election, though that’s mostly because the Senate in the past has been out of session.
Moreover, while many lines have been crossed by both parties in the Senate in recent years, this would be a chasm over which it would be difficult to return. The Constitution notwithstanding, our system depends on elected officials acting with honor and good will. At some point, the Senate will hardly function as a deliberative body if it keeps this up. It may already be at that point.
Last year, Justice Ruth Bader Ginsburg appeared at the Simmons Bank Arena in North Little Rock before 13,000 people, with a waiting list reportedly as long. I cannot convey how big a rock star she was that night.
There, she shared fond memories of herself with … Scalia. The feminist Ginsburg and the conservative Scalia were buddies who wrote dueling opinions by day and spent New Year’s holidays together with their families. In India, they were photographed riding an elephant together. She said her feminist friends were aghast that she was riding in back.
“I explained that had to do with the distribution of weight,” she said to laughter.
So you had a conservative and a feminist, both known for saying what they meant, who could remain longtime friends and not worry about who was in front.
There’s a lesson there for all of us, senators especially.
Steve Brawner is a syndicated columnist in Arkansas. Email him at firstname.lastname@example.org. Follow him on Twitter at @stevebrawner.