The Senate has scheduled confirmation hearings for President TrumpDonald TrumpJudge rules Alaska governor unlawfully fired lawyer who criticized Trump Giuliani led fake electors plot: CNN Giuliani associate sentenced to a year in prison in campaign finance case MORE’s nominee, Neil Gorsuch, to fill the vacancy on the U.S. Supreme Court to begin on Monday — almost exactly a year after President Obama nominated Merrick Garland for the same post.
What difference a year makes.
President Obama held a Rose Garden press conference on the morning of March 16, 2016, to announce his choice of Garland, the centrist chief judge of the U.S. Court of Appeals for the D.C. Circuit.
Hours later, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThese Senate seats are up for election in 2022 WATCH: The Hill recaps the top stories of the week Effort to overhaul archaic election law wins new momentum MORE walked up to another podium and declared that Senate Republicans would not allow a vote on the nomination, despite Garland’s moderate credentials.
“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country,” McConnell explained. “So of course — of course — the American people should have a say in the Court’s direction.”
It’s “about a principle, not a person,” McConnell said, conveniently ignoring the fact that the people had already elected Obama as their president twice.
So, what did the American people have to say?
When Obama nominated Garland for a seat on the court, he enjoyed a 50 percent approval rating (net +4 points), according to Gallup, while Trump’s stands at just 40 percent (net -14 points). Indeed, Trump has the lowest approval ratings ever for any new president at this point in their term for as long as such poll numbers have been collected.
Obama was re-elected in 2012 with 51 percent of the vote; Trump won just 46 percent of the vote in 2016.
Two out of three voters (65 percent) told Pew Research Center last summer that Supreme Court appointments were “very important” to how they would vote in the 2016 presidential race. Nearly 66 million of Americans then went to the polls and cast their vote for Hillary ClintonHillary Diane Rodham ClintonNo Hillary — the 'Third Way' is the wrong way The dangerous erosion of Democratic Party foundations The Hill's Morning Report - Presented by Facebook - Democrats see victory in a voting rights defeat MORE, compared to 63 million who voted for Donald Trump.
A year ago, 52 percent of Americans favored Garland’s nomination. Just 45 percent favor Gorsuch for the Court, the lowest level of public support for a Supreme Court nominee since the controversial nominations of Robert Bork (31 percent) and Harriet Miers (44 percent). The Senate rejected Bork, and Miers withdrew under intense criticism.
“The American people are perfectly capable of having their say — their say — on this issue,” said McConnell last year at this time. “So let’s give them a vote. Let’s let the American people decide.”
The numbers are in Mr. McConnell, and they don’t cut in Judge Gorsuch’s favor.
As if that weren’t enough, we now have a White House and Justice Department in chaos, mired in a growing scandal over possible Russian interference in the 2016 elections and possible collusion with Trump’s campaign that calls into question the very legitimacy of the current administration.
What should the Senate do when the most unpopular president in recent history makes one of the most unpopular Supreme Court nominations in recent history?
“The Senate is not a rubber stamp, and the Constitution does not require the Senate to give a nominee a vote,” McConnell insisted last year. “Let’s keep working together to get our economy moving again and make our country safer, instead of endlessly debating an issue where we don’t agree.”
Let’s call that the “McConnell Rule” on judicial nominations and, out of courtesy, stick to it as long as McConnell controls the Senate.
The Senate should table Judge Gorsuch’s nomination to the Supreme Court until both political parties are prepared to search for a consensus candidate the American people can wholeheartedly support, and until some semblance of stability is restored in Washington, D.C.
Otherwise, Americans face the very real prospect of having a president who may not survive his first year — let alone his first term — cast his shadow over the legitimacy of our nation’s highest court for decades to come.
Lisa Graves is the executive director of the Center for Media and Democracy and previously served as Chief Counsel for Nominations for the U.S. Senate Judiciary Committee for Senator Patrick LeahyPatrick Joseph LeahyThese Senate seats are up for election in 2022 Senate panel advances bill blocking tech giants from favoring own products Former US attorney considering Senate run in Vermont as Republican MORE.
Arn Pearson is the general counsel and policy advisor for the Center for Media and Democracy. He has worked for more than 20 years developing federal and state policy and legal strategies around campaign finance reform, government ethics, corporate accountability and tax reform.
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