It was less than two hours after Justice Antonin Scalia’s death was reported in February that Senate Majority Leader Mitch McConnell began his crusade to prevent the appointment of his replacement on the Supreme Court. From the outset, McConnell’s insistence was that the next president—by the will of the American people—would have the privilege of selecting a new ninth Justice. This outstanding vacancy, as well as the potential for several other vacancies to open up over the next few years, has become a major issue in the presidential election. Meanwhile, President Obama’s nominee, Merrick Garland, has languished in limbo awaiting a confirmation hearing.
This stall tactic was offensive enough, but all of the Senate Republicans’ bluster may have spun into something much more sinister. Last Monday, Senator John McCain made a bold and injurious claim: that the GOP “will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” In other words, McCain, McConnell, and Co. have changed their tune—President Obama’s “lame duck” nomination isn’t the problem at all; instead, they refuse to allow any nominee from a Democrat that will, as McCain put it, “change this country for decades.” And with most polls pointing to a likely Clinton presidency, Republicans appear to be scrambling to salvage any party unity they can from the scorched earth Donald Trump is leaving in his wake.
McCain, who is currently running for re-election, made these comments on Philadelphia’s 1210 WPHT as a way of praising Pennsylvania Senator Pat Toomey (himself facing tough opposition from Democrat Katie McGinty in his re-election bid). With that in mind, this might just be McCain being “braggadocious” (as Trump would say) in an attempt to scare up some votes and try to keep the Senate under GOP control. With competitive races in NC, PA, NH, NV, MO, IN, and elsewhere, current polling from FiveThirtyEight and The Upshot suggests the likelihood (albeit by a slight margin) of a Democratic Senate majority come January. If that comes to pass, then Clinton would face a much easier path to filling the Supreme Court, Republican threats notwithstanding.
But McCain’s promise that Republicans would indefinitely blockade any SCOTUS nominations made by a President Clinton isn’t just irritating, it’s downright dangerous. If only Republican presidents get to select Supreme Court justices, then the implication here, of course, is that a Democratic president is not a legitimate president. And if you’re disquieted by that last sentence, you should be: It challenges the very fundamentals of our democracy.
Meanwhile, Trump has been casting aspersions on the legitimacy of the election for months, insisting repeatedly (and without basis) that the election is “rigged.” Trump has made clear that he doesn’t believe it’s possible for him to legitimately lose the presidency, much to the chagrin of just about everyone. Notably, it’s not just the left who have balked at Trump’s “rigged election” claims; even Trump’s running mate has been doing damage control to counteract the accusations. As recently as last week, Republicans were rushing to publicly denounce their nominee’s doubts about the anticipated result.
If nearly half of Trump’s supporters don’t trust the outcome of the election, that’s one thing. The fact that McCain (a well-respected 30-year Senator who has formally unendorsed Trump for his behavior) is trying to undermine the authority of the President is far more terrifying. If we take McCain at his word, then the GOP’s new strategy appears to be dismantling the government from the inside out. Much has been made of the Senate’s refusal to hold hearings for Merrick Garland over the past seven months, but now, they’re actively refusing to do their jobs for another four-to-eight years.
As you could probably imagine, this is unprecedented: the longest vacancy in Supreme Court history came during the Tyler and Polk presidencies and lasted 841 days (or a little over two years, from April 1844 to August 1846). The longest in modern history was during the Nixon administration, and lasted “only” 391 days before Harry Blackmun was sworn in. McCain has now promised to leave the seat vacant for at least five years, and possibly longer, depending on the outcome of the 2020 election.
To be perfectly frank about it, this threat is tantamount to treason—Congressional Republicans are refusing to recognize the legitimacy of a democratically-elected President and crippling the effectiveness of the Judicial branch in the bargain. Imagine what could happen if, as many anticipate, two or three additional Justices retire in the next four-to-eight years. There seems to be no valid reason for Republicans to continuously refuse legitimate appointments made by a President Clinton, other than a purely selfish attempt to hold onto some semblance of power. Looking ahead in this scenario, if the Republicans do manage to win the Presidency in 2020 or later… why wouldn’t Democrats return the favor? It’s not that difficult to imagine the left retaliating with similar pettiness, leaving our country in perpetual constitutional crisis. Even if the scenario doesn’t end up being so grave, this effort will only serve to neuter the Supreme Court and diminish its authority, throwing our already-delicate legislative balance of powers into complete disarray.
All of this doomsday prophesying aside, the fact is that Congress has a constitutional obligation to maintain the Supreme Court, whether they like it or not. If Senate Republicans refuse to do the jobs for which they were elected, then not only are they stalling our nation’s progress—they’re delegitimizing the very Constitution that they’re sworn to uphold. Even if McCain’s threat never comes to fruition, taken alongside the Republican nominee’s propagation of conspiracy theories and encouragement of violence, the ramifications are truly dire. You can trace a direct lineage from Trump’s inflammatory rhetoric to Milwaukee Sheriff David Clarke, Jr. claiming that it’s “pitchforks and torches time,” and if the rest of the Republican party isn’t pretending to take the high road anymore, then things may only get more hostile from here. The presidential race might seem to be winding down, with less than three weeks to go, but there may very well be much, much more of the same partisan fury on the horizon.