It’s ironic that candidate Donald Trump, the lyingest candidate for president ever, got away with labeling one of his chief rivals for the Republican nomination as “Lyin’ Ted” Cruz. I think of Cruz as the kind of extreme right-wing ideologue who would happily crash the economy to demonstrate his anti-debt credentials (he filibustered against an increase in the debt ceiling), but a very smart and learned one.
I never particularly thought of him as a major liar, at least by the low standards we bring to truth-telling by politicians. But I was wrong, as this piece by my beloved FactCheck.org makes clear.
The Republicans succeeded in executing an unprecedented strategy: holding a Supreme Court vacancy open for an entire year, refusing to allow even a committee hearing on former President Obama’s nomination of the exquisitely-qualified and relatively moderate Merrick Garland. The Republicans played hardball and they got away with it because they could, because they controlled the Senate and dealt one more blow, perhaps the final fatal one, to the quaint old tradition of trying to hold down the partisanship where the Supreme Court was at issue.
They hid behind a colossal lie that there was some kind of unwritten Senate rule that no judicial nominations would ever be considered in the final year of a president’s term because it was long deemed necessary to hold such vacancies open so the people could weigh during the upcoming election.
And now, if they use their muscle sufficiently, they will reap their reward: the confirmation of Judge Neil Gorsuch. There is nothing the Democrats can do about it if the Republicans continue to stick together, and it seems altogether likely that they will.
But they don’t need to lie anymore about their motives. Yet when being interviewed by CNN’s Don Lemon about whether Democrats would try to block confirmation of Trump’s nominee as vengeance for the Republicans blocking Obama’s nominee, Sen. Cruz went back to the now-totally-debunked lie. Thus:
Well, look, anything is possible. You’re right. A lot of Democrats are angry. They’re angry at the results of the election and a number of them will point to Merrick Garland. You know, I’ll point out, Don, the situations are very, very different.
Justice Scalia passed away last year, right in the middle of a presidential election. It has been 80 years since the Senate has confirmed any judicial vacancy for the Supreme Court that occurred during a presidential election. And the Republican majority in the Senate last year announced before Merrick Garland was nominated, before anyone was nominated, that we were going to keep this seat open and let the American people decide.
(Snide note: The fact that the Republicans announced this apparently made it less partisan, right?)
Drop it, Senator. Just drop it. You didn’t change the rules, but you broke the norms. As of now, the norm is that vacancies on the Supreme Court will remain unfilled if the president’s party doesn’t control the Senate. And, at the moment, that guarantees a Republican majority on the court. Congratulations, Senator, you did it. Just own it and stop torturing the history to pretend there’s some principle involved.
You’ll note that Cruz made a specific factual claim, that “It has been 80 years since the Senate has confirmed any judicial vacancy for the Supreme Court that occurred during a presidential election.” It’s not true, as the FactCheck piece enumerates. Supreme Court vacancies were filled in the presidential election years of 1988 and 1940. You can if you want to (and Sen. Cruz surely would want to) torture those cases so they don’t violate the revered 80-year-old tradition. But it hardly matters.
The number that matters is the number of vacancies, before last year, in which the Senate had refused to consider a nominee because of the “election year” rule.
That number would be zero. Until Scalia died at an inconvenient time (for Republicans) in February of 2016 (and, apparently, according to Sen. Cruz, nine months before Election Day qualifies as “the middle of an election”) and President Obama nominated Garland (in March).
And how many Supreme Court nominees were not even given the courtesy of a hearing under that powerful precedent before the Garland nomination? That number would also be zero. Well, perhaps that’s because presidents, respecting an unwritten rule, simply declined to nominate anyone for a vacancy during any presidential election. Guess how many times that happened? Yup, that number would be zero.
On the day Scalia died, Republicans invented an important new principle and backdated it 80 years, torturing the language to get around the 1988 and the 1940 cases, ignoring the total of zero cases they could point to as backup for their claim. And even though their trick worked, they (or at least Sen. Cruz) are sticking to their story.
An apology/addendum: I received an email from a woman in Texas who said that the Republican refusal to consider the Garland was in accordance to the so-called “Biden rule.” She didn’t tell me I could use her name, so I will not, but she is substantially correct. In June of 1992, Joe Biden, then a senator and chair of the Judiciary Committee, said on the Senate floor that if a vacancy occurred on the Supreme Court during the second half of that year, then-president George H.W. Bush should not nominate a replacement and that if he did, Biden would oppose the confirmation of such a nominee until after the election.
It turned out that no vacancy occurred and no nomination was made and it would be easy to make too much of this which was just a Biden floor statement. Unlike Cruz, Biden did not claim to be following some 80-year-old precedent. But Biden’s statement certainly provides some Democratic fingerprints on the idea of using such an approach, which the Republicans expanded in deciding that they would not have a hearing or allow a vote on any replacement nominated to replace Scalia until after the election.
If I had recalled it, I would have mentioned the Biden precedent in my piece and, in fairness, felt obliged to add it here once it was called to my attention.
Less apologetic addendum (and then I”ll try to stop): Another friend sends me this link, in which Cruz himself went beyond the idea holding the seat vacant until after the presidential and suggests that he might favor holding the seat open indefinitely, assuming that by indefinitely we mean that Cruz might favor blocking a nominee after the election, if the wrong side won. When asked, before the election, whether he would prepared to proceed on filling the Scalia vacancy if Hillary Clinton won the election he said:
“There will be plenty of time for debate on that issue … There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”
The same piece noted that Sen. John McCain had said that Senate Republicans would be “united” in blocking a Clinton appointment, but he later backed away from the statement.
Put it all together and I think it supports what I said above: The day is over when a Supreme Court nominee will be presumed to be approvable in the absence of disqualifying personal scandal. Maybe it started with Democratic opposition to Robert Bork. Maybe it goes further back than that. The old norm was just a norm. Norms are not laws; they are not even rules, and there is no mechanism to enforce them. The old reputation of the Supreme Court as an institution of judicial modesty that would put fidelity to the Constitution above ideology or partisanship might be the next thing to fall.
Read the Constitution as many times you like. It says nothing about what criteria the Senate should apply when deciding whether to give its “consent” to a presidential nominee to the Supreme Court. Without the old norms, we’re in swimming in waters that are uncharted and deep.