Donald Trump, who is president at least until noon on Jan. 20, 2021, had the audacity to declare that he would fill the vacant Supreme Court seat — just as the U.S. Constitution directs him to do.
Democrats were apoplectic and quickly vented their sanctimonious outrage. How dare the president fulfill his constitutional duty?! WE want to fill that seat (provided we take over the Senate and the White House first), they whined.
As precedent, liberals cited 2016, when Justice Antonin Scalia died and then-President Barack Obama, a Democrat, nominated liberal Judge Merrick Garland for the seat. Then, as now, Republicans controlled the Senate. So they simply said “nuh-uh.”
But Senate Majority Leader Mitch McConnell went further, saying that the upcoming election (236 days away) meant that the whole matter should be delayed (not so secretly hoping that a Republican would hold the White House by then).
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“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,” McConnell said.
And that act, supposedly, set the precedent by which all upright citizen senators should now live.
Of course, it didn’t — and it shouldn’t. The faux outrage by the Democrats now is belied by their aggressive declarations back in 2016 that Obama had every right to nominate a high court justice. Here are a few examples.
Eleven days after Scalia’s death, Obama declared: “The Constitution vests in the president the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.”
That is 100% correct.
“It’s also one of the most important decisions that a president will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives,” the president said.
Spot on, again.
Then there was Vice President Joseph R. Biden.
“The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent,” Biden wrote in a New York Times op-ed in 2016.
“It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend,” he wrote. “That’s why I was so surprised and saddened to see Republican leaders tell President Obama and me that they would not even consider a Supreme Court nominee this year. No meetings. No hearings. No votes. Nothing. It is an unprecedented act of obstruction. And it risks a stain on the legacy of all those complicit in carrying out this plan.”
In a later speech at Georgetown University, Biden also said: “I would go forward with a confirmation process as chairman, even a few months before a presidential election.”
Biden has made a 180-degree turn with the death of Justice Ginsburg, writing on Twitter on Friday: “Let me be clear: The voters should pick a president, and that president should select a successor to Justice Ginsburg.”
Obama has flipped, too.
“Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in,” he wrote in a statement.
Then there’s Justice Ruth Bader Ginsburg, who died of cancer on Friday.
She said in 2016 that there is “nothing in the Constitution” that prevents a president from filling a vacant seat on the high court in his final year in office. Her words came after Scalia passed away and McConnell refused to bring up the nomination.
“Asked if the Senate had an obligation to assess Judge Garland’s qualifications, her answer was immediate,” The New York Times reported in July 2016.
“That’s their job,” she told the paper. “There’s nothing in the Constitution that says the president stops being president in his last year.”
So, if you’re keeping score at home, Obama and Biden and Justice Ginsburg ALL declared that the president has the right — even the duty — to nominate a prospective justice.
Let’s be even more clear: If Democrats controlled the Senate, they would’ve rammed through a replacement for Scalia.
And (to be crystal clear) it would’ve been their right. They held the White House, they controlled the Senate, and the Constitution spells it all out. Politics ain’t beanbag, and elections have consequences.
The phony outrage from Democrats has been hilarious to watch. And liberals will continue to decry the fact that Trump wants to seat a Supreme Court justice — right up to the moment that Mr. Trump seats a Supreme Court justice.
*Joseph Curl ran the Drudge Report from 2010 to 2014 and covered the White House for a dozen years. He can be reached at [email protected] and on Twitter at @JosephCurl. A version of this article ran previously in The Washington Times.
