On the Supreme Court, Mitch McConnell’s pretzel logic

Senate Majority Leader Mitch McConnell says there’s a reason why it’s okay to push through confirming a Supreme Court Justice now, just before the election, and it wasn’t when Barack Obama nominated a Justice in his last year as president. Let’s examine his justification and see if there’s any way it makes logical sense.

The logic of blocking Obama’s pick in 2016

When Barack Obama nominated Merrick Garland for the Supreme Court in March of 2016, after the death of Antonin Scalia, Mitch McConnell refused to hold hearings or vote on the nomination. There are two ways to look at McConnell’s action:

1. Based on logic. McConnell reasoned that the people should weigh in on the opening, based on who they chose to be the next president and members of the Senate in the next term. His statement at the time: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” You can argue whether this was fair at the time, but it is at least a logically consistent position. The precedent is, in an election year, the new president gets to make the pick.
2. Based on naked political calculation. When McConnell made this move, I posted “A Moneyball analysis of Mitch McConnell’s Supreme Court defiance.” I analyzed the potential outcomes for the median Supreme Court Justice (the swing vote) based on McConnell proceeding on Obama’s nomination, or waiting. I proved that the median justice would either the same, or more conservative, if McConnell waited. This analysis proved accurate: after two conservative Justices appointment by Trump, the median justice is now John Roberts, who is significantly more conservative than the previous median justice, Anthony Kennedy.

What’s McConnell’s logic in moving forward with Trump’s pick?

The naked political calculation for McConnell to push through Trump’s pick to replace the late Ruth Bader Ginsburg is much clearer than in 2016. McConnell has a Republican president and a Republican majority in the Senate. Either could be gone by January. So from an opportunistic perspective, a conservative justice would be a lot more certain to be confirmed now than if McConnell waited. Assuming the nominated justice is quite conservative, the swing vote would become Brett Kavanaugh, who’s more conservative than Roberts.

But McConnell claims that there is a logical (as opposed to political) reason for considering Trump’s pick when he refused to consider Obama’s. His statement:

In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected 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.

So now the precedent is, supposedly, that if the President and the Senate are controlled by the same party, it’s okay to confirm a pick.

Consider what you have to believe to accept this logic:

• Voters in 2016 deserved a chance to weigh in on the president who would nominate a Supreme Court Justice, but voters in 2020 do not.
• Voters in 2018 elected Republicans as a “check and balance” on a Democratic President, but voters in 2020 who want to “check and balance” Trump will not get the chance.
• When the President and Senate majority are of the same party, they should be able to do whatever they want. When the President and the Senate are of different parties, then you have to wait and see if things might change before you act.

None of this makes sense to me. If you think people elect senators as a check on the president, then it makes sense to see if they will now elect Democrats as a check on Trump. I don’t care what party you support — the pretzel logic is just impossible to credit.

Politics and the Supreme Court

Here’s an alternate explanation: in 2016, it was not wise for McConnell to hold hearings on Obama’s nomination of Merrick Garland, because Republican Senators would have to invent reasons to reject him, demonstrating their partisanship. Avoiding the hearings and the vote meant that Republicans could gamble on things getting better electorally (which they did), and avoid the political risk of rejecting a moderate nominee before the election (which they also did).

In 2020, a Supreme Court Justice nominated by Trump and confirmed to the court would avoid the risk of a democratic president and Senate nominating a liberal justice in 2021. Moreover, such a justice could have the chance to weigh in on election disputes in the 2020 election. This is a very alluring prospect politically for partisan Republicans. It makes up for the political risk of voting before the election.

It may even happen that Senators vote to confirm the justice after election day, but before the election is decided (say, in mid-November). This would be the ultimate lame duck move — Senators avoid the political risk of voting before the election, but then a Senate about to leave office votes on a justice who can put a thumb on the scale for the presidential candidate of their own party.

As Nate Silver has pointed out, the dominant influence of rural voters in low-population states gives them disproportionate influence in the Senate. This means that rural voters carry more weight in Supreme Court nominations — and of course, rural voters are more likely to be voting Republican. If you buy this analysis, then the period of 2021-2023 could be an unusual window in which both the Senate and the presidency are held by Democrats. Is it any wonder that Mitch McConnell wants to avoid a Supreme Court nomination happening in that window?