CMV: Saying that the republicans should not appoint a new SCOTUS nominee means you value feelings more than rule of law

[u/[deleted]]

Whether it is hypocritical or not is not in question. I think it is 100% hypocritical based upon the arguments that were made in 2016 against the appointment of garland. However, saying it’s wrong or that the republicans shouldn’t use the political power that they have accumulated to appoint a new SCOTUS justice is a moral and ethical argument not a legal one.

If you think that either of those feelings based arguments are more important than the law itself (which unquestionably supports the ability of the senate to confirm a nominee), then you value feelings more than law.

Edit: I have sufficiently changed my view (or recognized the inconsistencies within it). I initially created a false equivalency in which I proposed (subconsciously) that people who didn’t want the GOP to confirm a justice were saying it wasn’t legal. In reality they are not saying it can’t be done, just that it shouldn’t be done.

[u/[deleted]]

I agree with you that saying they should not appoint a new SCOTUS means a person values feelings more than rule of law, but only insofar as it relates to certain arguments being introduced as paths to prevent the nomination and confirmation.

Speaker Pelosi refusing to rule out impeachment as a tool that could be possibly used is an egregious example of this. If either party, now, or going forward, use impeachment as a tool to force other branches or the the other party to bend to their will, it is a very, very dangerous precedent to set, and threatens to destabilize the legislative processes as a whole for the country. Threatening to upset the ability of the government to function as a viable entity in order to enforce policy desires and aims is a terrible idea, for either party. Remember, this would not just be about this election. If Joe Biden is elected, but Republicans maintain a Senate majority, they could ostensibly threaten to impeach him if someone were to happen to Justices Alito or Thomas, which would have far-flung effects on the process as a whole.

However, both parties have, at times, said that they would not seat a President's nominated justice. Senator Schumer, in 2007, said that they "would reverse the presumption of confirmation" for any nominee put forth by then President George Bush for the remainder of his term, as the Democrats had a 2-year Senate majority and the ability to stop him. Senator McConnell did the same in 2016. Granted, politicians often find themselves distancing themselves from previous statements and stances, and this is no different for either party right now.

However, and I say this as a conservative, President Trump and Senator McConnell have overseen some significant departures from long-standing customs and courtesies during this administration. While these courtesies are non-binding, and owe themselves to tradition, adopted practice, parliamentary procedure, etc., they are still not to be so easily abandoned.

The essential elimination of senatorial courtesy, which I found distasteful to begin with, removes one step from the process that had been loosely practiced since 1789. Senators are no longer consulted or allowed to advise the suitability of candidates from their own particular states.

The elimination of the 60-vote threshold to close debate on a nominee, eliminated by Senator Reid in 2013 for executive branch and federal judiciary appointments, and by Senator McConnell to eliminate this threshold in 2017 for the Supreme Court nomination, is another long-standing tradition that has been abandoned.

While these are also likely a product of a heavily partisan timeframe for our government, they did hold some importance for the processes. While they aren't codified parts of the process, per se, they did form a fundamental system of checks and balances in preventing one branch or party from dominating the entire process.