Donald Trump sat down with Bloomberg News reporters last week, and in response to an unrelated question, the president started bragging about all the vacancies he’s filled on the federal judiciary. Referring to Obama administration officials and the lack of judicial confirmations toward the end of the Democrat’s presidency, Trump said, “I think they forgot. I really do, I believe they forgot.”
It’s the kind of quote that makes progressive observers reach for a bottle of antacids. Obama and his team didn’t “forget” about judicial nominees; they sent plenty to the Senate for consideration. Republicans, however, blocked them, waiting for a GOP White House to take office.
Yesterday, as Brett Kavanaugh’s Supreme Court confirmation hearings got underway, Sen. Lindsey Graham (R-S.C.) gave Democrats on the Judiciary Committee an indignant lecture on how they should deal with a Republican administration’s nominees for the federal bench.
“You had a chance and you lost. If you want to pick judges from your way of thinking, then you better win an election…. We have turned the history of the Senate upside down.”
At face value, Graham’s little rant may seem vaguely reasonable. It’s plainly true that elections have consequences and the party that controls the White House gets to choose judicial nominees. If the party out of power isn’t happy, then, to borrow the South Carolinian’s phrasing, that party should “win an election.”
But the GOP senator may not remember recent history as well as he should. “If you want to pick judges from your way of thinking, then you better win an election”? Well, Barack Obama won an election – in fact, he won two – and when he tried to fill a Supreme Court vacancy with a compromise nominee recommended by Republicans, Graham and his GOP colleagues refused to even give Merrick Garland a hearing, choosing instead to impose a months-long blockade with no precedent in the American tradition.
If “winning an election” is the prerequisite to picking judges, why did Graham participate in a partisan scheme to steal a Supreme Court seat from a democratically elected president?
What’s more, Graham is conveniently overlooking the fact that several Senate Republicans argued in 2016 that if Hillary Clinton won the presidential race, they’d block any Supreme Court nominee she chose, regardless of merit, for her entire term. There was, at the time, a pending vacancy on the high court, and at least three GOP senators said that they’d keep that vacancy open until 2021, at the earliest, if the Democratic won.
I don’t recall Graham complaining about this vow at the time – despite the fact that it would have turned the history of the Senate upside down.
Finally, let’s not brush past the first seven words of Graham’s lecture: “You had a chance and you lost.” That’s true, I suppose, to a point, but the details matter.
The American people were given a choice, and by a margin of nearly 3 million people, they preferred Clinton to Donald Trump. The Republican did win the Electoral College, which gave him the presidency, but his candidacy benefited from intervention by a foreign adversary that attacked our elections, as well as an 11th-hour boost from the then-director of the FBI.
To suggest that Trump earned the right to fill Supreme Court vacancies, fair and square, thanks to an endorsement from the American electorate, is to overlook what actually happened.