On Supreme Court Nominations, All that Counts is the Constitution | Opinion

Politicians of both parties seem to be flip-flopping on whether and when late-term presidents should attempt to fill Supreme Court vacancies. It's worth asking why.

Why does former President Barack Obama disparage the efforts of President Donald Trump and Senate Republicans to confirm Amy Coney Barrett as the Supreme Court replacement for the recently departed Justice Ruth Bader Ginsburg? After all, at the end of his term in 2016, Obama named—and exhorted the Senate to vote on—a nominee to replace the then-recently departed Justice Antonin Scalia.

Why does Senate Majority Leader Mitch McConnell insist there will be a vote on Barrett when there was not one on Obama's? Why is Senate Minority Leader Chuck Schumer similarly taking contradictory positions (in each instance, the opposite of McConnell's position)? Why has Joe Biden, on this as on many issues in his decades-long career, flipped and flopped and flipped again, depending on which party held the presidency or the Senate?

Ah, there's a hint in that last question.

The simple fact is that politicians never cop to playing politics. Our leaders would have us believe they are animated by high principle—and not by anything so crass as cold partisan calculation. It so happens, however, that there is no matter more dictated by brute power politics than the opportunity fill a Supreme Court vacancy.

There are only two principles that apply, both rooted in Article II, Section 2 of the Constitution. The first is that the president "shall nominate...judges of the Supreme Court." The second is that those justices (as we now call them) may not be appointed by the president—i.e., they may not assume their seats—unless the1 Senate has provided "Advice and Consent."

The Constitution's language—"shall"—appears to require that the president make a nomination. But endowment with a power is not necessarily a mandate to exercise that power, and there are no legal mechanisms to force the president to make a nomination. In the unlikely event a president were reluctant to propose an appointee, it would be up to Congress, if it saw the default as an abuse of power, to use its constitutional authorities (e.g., budget-slashing, impeachment) to pressure the president to make a nomination.

Notice, moreover, that while the Constitution may arguably require a president to propose a nominee, it does not require the Senate to act on the nomination. It simply says the nominee may not be appointed without the Senate's approval.

In any event, that is it as far as rules are concerned. Don't let anyone tell you this issue is governed by other legal provisions, vague "norms" or historical "precedents" such as the so-called "Biden Rule"—which turns out to be less clear than the infield-fly rule, and just about as pertinent.

McConnell
U.S. Senate Majority Leader Mitch McConnell (R-KY) talks to reporters following the weekly Republican policy luncheon in the Hart Senate Office Building (Photo by Chip Somodevilla) Getty

Other than the two constitutional provisions discussed above, there are no binding rules. There are just politicians weighing their opportunities to achieve or prevent an outcome, and then swaddling their maneuvers in highfalutin bluster.

Constitutionally speaking, presidents should of course make Supreme Court nominations. Mainly though, President Trump has made one now because he figures it will help him politically. Barrett is obviously a woman, and Trump was clear all along that his nominee to replace Ginsburg would be a woman. This is not because there were no qualified men for Trump to consider. It is because (a) Trump is trying to appeal to women voters; (b) picking a woman may blunt, to some degree, the hysteria over the supposedly imminent demise of Roe v. Wade that Republican judicial appointments always stir; and (c) choosing a man to replace Justice Ginsburg, an iconic progressive who was just the second woman ever appointed to the Court, would be political malpractice.

Will the nominee be confirmed? As in most political matters, that depends on whether Republicans have the votes.

On this score, it does not matter what position Senator McConnell took in 2016. It was imprudent for him and other Republicans to say, in the heat of that moment, that it would be best if the voters decided on the vacancy by electing the president they'd prefer to have fill it. Obviously, that rhetoric is coming back to bite them now. The fact is, it was a simple political calculation: Senate Republicans had the constitutional power and the political incentive to block Judge Merrick Garland, his undeniable credentials notwithstanding. They did not want another Obama justice if it was at least possible that a President Trump could fill the seat with a jurisprudential originalist in the Scalia mold. The vacancy helped Trump's bid, and helped Republicans hold the Senate.

Nor was the politicking one-sided. If the Democrats had held the Senate, Obama would have picked a young progressive firebrand instead of a 62-year-old moderate. Senator Schumer would have rammed it through. Just as, if Democrats held the Senate now, Barrett's nomination would be dead on arrival; no one on the Left would be saying, as President Obama said in 2016 (echoed by Justice Ginsburg herself), that the president should fulfill his duty to nominate, and the Senate its purported duty to vote on, the appointment.

If there will be a Senate floor vote on Barrett, it would be best for McConnell to push for it before Election Day—as all present indications point toward. Afterwards, the politics get tougher. The likely election in Arizona of Democrat Mark Kelly over incumbent Republican Martha McSally would reduce McConnell's margin to 52 to 48, since Kelly could take his seat in late November under state law. And of course, if Trump loses to Biden, other Republicans will be dissuaded from voting for his nominee. Doing so would encourage Democrats' radical threat to repeal the filibuster, expand the Court and pack it with progressives.

In any event, the politics will call the tune, and that is a sign of our dolorous times.

Supreme Court vacancies are politically fraught because the High Court is more of a political super-legislature than a judicial institution. Until the last half-century, the courts were not seen as vehicles for dramatic social change. That was for the public to handle democratically, through elected officials. Back then, what mattered was a judicial nominee's legal acumen and personal rectitude. Confirmations were bipartisan, and often marked by acclamation.

Those days are gone. The Left expects the Supreme Court to reinterpret the Constitution and various statutes in order to enforce progressive pieties. Conservatives want the Court to stop this process, apply the law as it was understood when adopted and force matters of governance back to Congress and the ballot box. A lifetime appointment to a super-legislature, inexorably, has become an explosive political affair. That's a fact, and we should not pretend that it isn't.

Andrew C. McCarthy is a bestselling author, contributing editor at National Review, and a Fox News contributor.

The views expressed in this article are the writer's own.

Editor's Note: This piece initially ran at Newsweek on September 22, 2020. It has been slightly modified and updated to re-run on October 12, 2020, in conjunction with Newsweek's "The Debate" platform.