To hear Democrats in Congress, the very nomination of Judge Amy Coney Barrett to the Supreme Court is illegitimate. Putting up a new member in an election year, they and their media pals tell us, violates every unwritten “norm” of our system. They are wrong.
The real norm is written in a history that every first grader should know—but apparently not the likes of Senators Chuck Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.). The very first Supreme Court nomination during a competitive election year—which was our fourth presidential election year, 1800—came after both the outgoing president and his party in the Senate had lost at the ballot box, but before each had left office. It led to the installation of the most consequential chief justice in the nation’s history, John Marshall.
But such ancient history is no precedent at all, the Democrats insist, for, as they tell us, Republicans confirmed a better, more modern rule in 2016, when they refused to fill Justice Antonin Scalia’s seat before that year’s election. Maybe the Democrats and the media (to be fair, some Republicans, too) should think for more than a hot minute about the written rules for nominating and confirming justices. The written rule tells a different story.
What the Constitution Says
Now, we all know that, so far as this election season goes, the written law has been treated as simply passé. Take, for example, this rule from Article II, Section 1 of the Constitution. It requires only a second or two to read: “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.”
Already, by extending their deadlines for receiving and counting mail-in ballots, the Democrat governors of Pennsylvania, Michigan, Wisconsin, and North Carolina have tossed that rule aside, opening the coming election to an Illinois-1960 outcome.
In 1960, Democratic Mayor Richard Daley withheld Chicago’s vote count until returns from Republican downstate were in. Then, magically, he reported sufficient votes for John F. Kennedy to give Kennedy the state and, in that close year, the Electoral College and the presidency.
Today, in those four pivotal states and likely others, the 2020 stage is set for another Daley-like outcome, with more time and more states in which to manufacture the so hotly desired result than Richard Daley in his most expansive dreams ever imagined possible.
The written rule regarding selection of judges (Section 2 of Article II) takes even less reading time than the one about election days. The president, it says, “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court . . . .”
Close study of constitutional language as originally understood is not a skill that Democratic officeholders, or their appointees to any level of the judiciary, or their pals in the media respect or cultivate. “If it feels good, do it” is closer to their New Age mark.
What Would Prudence Dictate?
But whether you are a Republican textualist or a Democratic abstract impressionist, the Constitution is truly living when it comes to intra-governmental interplay: How it works and what it means changes with the circumstances.
So, what does “advice and consent” mean? More specifically, what should it have meant for President Obama in 2016 when he nominated Merrick Garland for the high court versus for President Trump this week when he decided on Judge Barrett?
The distinction is prudence, a standard as ancient as politics itself. “[O]ur choice of actions,” Aristotle wrote, “will not be right without Prudence any more than without Moral Virtue, since, while Moral Virtue enables us to achieve the end, Prudence makes us adopt the right means to the end.”
The authors of the Constitution understood this enduring “norm” of political behavior. At the moment of declaring the country’s independence, the founders cited it as their guide to action: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.” Can there be any doubt that when it came to requiring the president to seek the “advice and consent” of the Senate, the founders meant he should do so as informed by prudence?
The Lost Give-and-Take of Politics
So why in 2016 didn’t President Obama see that just coming up with his high court candidate and throwing his name over the wall into Republican-controlled Senate chamber did not prudentially fit what the Constitution meant by “advice and consent”?
In that divided circumstance, “the right means to the end” meant sitting down with the Senate leader (that would have been the Republican leader from Kentucky, Mitch McConnell) and developing a list acceptable to both of them. Was Senator McConnell unmovable? How about going to senators like Susan Collins (R-Maine) and Lamar Alexander (R-Tenn.) and determining candidates that would split off enough Republican votes to get around Senator McConnell?
But this kind of prudence—which is the normal give and take of politics—was never in the Obama skillset. After all, this was the president whose idea of an olive branch in budget negotiations was to invite then-Representative Paul Ryan (R-Wis.) to a speech he was giving at George Washington University, reserve for Ryan a front-row seat, and then use the speech as an occasion to denounce Ryan’s budget proposals as immoral.
In contrast, President Trump has taken a prudent look at today’s Senate. The chamber’s minority has spent four years in a scorched earth campaign to destroy his presidency and failed. In what universe would giving their advice two seconds of consideration fit within the constitutional presumption of prudence?
Senate Democrats want norms? How about the norms of courtesy and respect during the Senate hearings to come? Or will we find that, like riots in cities all over the nation, the kind of hearings they gave Robert Bork, Clarence Thomas, and Brett Kavanaugh remain their idea of our system’s new norms as the Democrats have so bizarrely determined them to be?