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The GOP Must Keep Its Promise

Supreme Court nominations matter.

That’s because justices have significantly different understandings of the court’s proper role.

To oversimplify the matter:

¯ On the one hand we have activist justices, who are inclined to varying extents to base decisions on their own policy preferences.

¯ On the other hand we have originalist justices, who are inclined to varying extents to base decisions on the meaning of law as written, regardless of their policy preferences.

If all justices followed the latter approach, Supreme Court nominations would matter far less than they do.

Over time the two approaches have come to coincide closely, though not perfectly, with the two major parties. Democrats tend to opt for the former. Republicans tend to opt for the latter.

The Constitution empowers the president to appoint justices with the advice and consent of the Senate.

Democrats have – to put it mildly – often exercised vigorous forms of advice and consent since 1968 when Republican presidents have made court nominations.

Many court nominees by Republican presidents have been the targets of ever more vicious attacks. During 2018 court-nomination hearings, a longtime Senate Judiciary Committee member recalled three such attacks. Each was even worse than the previous one.

Senate Republicans could have similarly attacked nominees by Democrat presidents. But they haven’t. The most they’ve done was to decline to hold hearings or a vote on a 2016 nominee.

At the time, Republicans invoked what they cleverly called the Biden Rule.

According to reports, under that rule – in effect since 1880 – no court nomination proceeds in the Senate in a presidential-election year when the Senate majority is of a different party than the president.

The rule is named for, and was announced before the 1992 presidential election by, the then-Senate Judiciary Committee chair, who happens to be the Democrats’ 2020 presidential candidate.

Lo and behold, Democrats in 2016 objected to the rule when it cut against them.

Republicans say the rule doesn’t apply to the 2020 court vacancy, because the Senate majority is of the same party as the president.

Even if the rule isn’t the ideal way to proceed, Republicans – given Democrats’ behavior since 1968 – would be foolish to disarm unilaterally.

Let’s speak plainly. The rule is a fancy way of saying what everyone knows is really going on here: Senators of each party tend to want court nominations to proceed in a presidential-election year only when the nomination comes from a president of their party.

It’s that simple.

So this is about rounding up votes – largely along party lines – in the Senate.

Why? Again, Supreme Court nominations matter a lot, because justices have significantly different understandings of the court’s proper role. And again, the different jurisprudential approaches have come to coincide closely, though not perfectly, with the two major parties.

Having treated court nominees by Republican presidents so badly since 1968, Democrats’ objections to (1) Republicans’ 2016 actions that did not trash a Democrat nominee, and (2) Republicans’ seeking to nominate and vote on a court nominee in 2020, are audacious yet not surprising.

Republicans should say that.

They should also say that under the Constitution, the president has the power to appoint Supreme Court justices with the advice and consent of the Senate. This power extends throughout a president’s term of office.

Given that, at least in 2020, there’s no need for Republicans to cite or distinguish – cleverly or otherwise – any Biden Rule. Republicans should instead assert the honorable principle that President Trump asserted on Sept. 19: They promised to support originalists for the court, and they’re going to keep their promise. Period.

For two reasons, Democrats don’t want Republicans to keep their promise. First, they largely don’t want originalists. They want activists instead. Second, they know Republican-supporting voters will revolt against Republicans who don’t keep their promise.

Republicans must keep their promise.

Dr. Randy Elf has written briefs for the U.S. Supreme Court.

COPYRIGHT ç 2020 BY RANDY ELF.

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