In 2016, President Barack Obama appointed Judge Merrick Garland to fill the seat left vacant by the untimely death of Justice Antonin Scalia. Senate Majority Leader Mitch McConnell argued that “Article II, Section II of the Constitution grants the Senate the right to withhold its consent, as it deems necessary,” and that tradition holds that when a Supreme Court vacancy exists in an election year when there is a president of one party and a Senate controlled by the other, the nomination should wait until after the election.
Eleven Republican Senators, in a letter to Majority Leader McConnell, wrote that you have to go back to 1888 “in order to find an election-year nominee who was nominated and confirmed under divided government, as we have now.”
Sen. John Thune added that “the Senate Republican majority was elected to be a check and balance to President Obama.” And Sen. John McCain reiterated that position, stating that “the last time the American people spoke, they elected a Republican majority to the Senate to act as a ‘check and balance’ on President Obama’s liberal agenda — a responsibility I cannot ignore.”
The American people elected a Republican, not a Democratic, Senate
Before Sen. McConnell and Senate Republicans advocated this position, it was Senate Democrats, including Joe Biden, who made this very argument. Biden said in 1992 that if President George H.W. Bush nominated a Supreme Court justice in an election year, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
But we’ll get back to the Democrats.
The American people elected a Republican Senate in 2014 to be a check on the Obama/Biden administration. Senate Republicans rightly argued in 2016 that they have a responsibility to reflect the will of the voters and withhold consent for the nomination of Garland until the voters had another opportunity to let their voices be heard at the ballot box.
Republicans were clear: This rule came into play when the White House and the Senate were controlled by different parties.
As it turns out, the voters doubled down on Republican control, electing Donald Trump as president of the United States and keeping Republicans in the Senate majority — a majority that was expanded in 2018 when the voters chose to keep Republicans in the Senate majority and replaced three Democrats with Republicans — including myself.
Senate Democratic leader Chuck Schumer and his allies spent $60 million to try to beat me in 2018 just for an occasion like this. But the voters of Florida had other thoughts.
With the death of Justice Ruth Bader Ginsburg, we’re faced with another political battle over a vacant Supreme Court seat. Unlike 2016, the White House and the Senate are both controlled by Republicans. I believe we have a duty and responsibility to hold hearings and a confirmation vote on President Trump’s nominee.
The Democrats and their allies in the news media are already howling with claims of hypocrisy. But Republicans have consistently noted the difference between 2016 and 2020. In 2016, there was divided government. In 2020, Republicans control the White House and the Senate.
2016 vs. 2020
The Democrats are essentially claiming that there’s no difference between 2016 and 2020. If that’s the case, why are they changing their tune?
In 2016, Sen. Schumer said, “Every day that goes by without a ninth justice is another day the American people's business is not getting done.”
In 2020, Sen. Schumer said, “This vacancy should not be filled until we have a new president.”
In 2016, Sen. Richard Blumenthal said, “There’s a duty to fill that vacancy, to make the system work.”
In 2020, Sen. Blumenthal said, “This close to the election, there is no way that the United States Senate can or should act before the voters decide.”
In 2016, Sen. Amy Klobuchar said, “Eight is not enough on the United States Supreme Court.”
In 2020, Sen. Klobuchar said that Republicans would face a “moral reckoning” if they attempted to fill the ninth seat on the Supreme Court.
In 2016, Vice President Biden said, “I made it absolutely clear that I would go forward with a confirmation process as chairman, even a few months before a presidential election. …The American people deserve a fully staffed Supreme Court of nine, not one disabled and divided, one that is able to rule on the great issues of the day.”
The vast power of the Supreme Court: Ginsburg flap shows Supreme Court, justices are too important
In 2020, Biden said, “Let me be clear. The voters should pick a president, and that president should select a successor to Justice Ginsburg.”
In the closing paragraph of former President Obama’s 2020 statement, he said unequivocally, “A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.”
He, no doubt, intended these words to be directed at Republicans, but it’s the Democrats whose arguments are dripping with hypocrisy. They’re changing their tune for partisan purposes and threatening to block a Supreme Court nomination without even knowing who the nominee will be.
Elections have consequences. The American people elected President Trump and a Republican Senate knowing full well that multiple seats on the Supreme Court could be at stake. What we’re doing is exactly what the voters and the Constitution prescribed.
If Senate Democrats don’t like that, win more elections.
Republican Rick Scott was elected to the U.S. Senate in 2018 and is serving his first term representing Florida. Follow him on Twitter: @SenRickScott
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This article originally appeared on USA TODAY: Democrats and SCOTUS: The hypocrisy surrounding the empty seat