On Capitol Hill, the 'because we can' standard emerges

The dynamic is striking in its simplicity: if you have the power, you exercise that power, without regard for norms, traditions, values, or restraint.
Image; Capitol
Visitors stand near the U.S. Capitol in Washington on Dec. 27, 2018.Andrew Harrer / Bloomberg via Getty Images

Like his Republican brethren, Sen. Marco Rubio (R-Fla.) insisted four years ago that the Senate impose a blockade on any Supreme Court nominee President Obama chose, regardless of merit of qualifications. The rationale at the time, of course, was that confirming a new justice eight months before Election day would be inappropriate.

"I don't think we should be moving forward with a nominee in the last year of this president's term," the Florida Republican said in 2016. "I would say that even if it was a Republican president."

Rubio, of course, promptly abandoned the principle he clearly never believed, and welcomed the opportunity to move forward with a nominee in the last year of Donald Trump's term. This morning, the Republican senator justified in a tweet his vote to confirm Amy Coney Barrett: "Last night 52 legitimately elected U.S. Senators cast 52 legitimate votes to confirm a legitimately elected President's highly qualified nominee to the Supreme Court of the United States."

And on the surface, Rubio's assessment may seem quite reasonable. Indeed, aside from the fact that two of the 52 GOP senators were appointed and not elected, and there are legitimate questions about the legitimacy of Trump's election, it includes no other glaring factual errors: there's a Republican-led Senate, which received a Supreme Court nominee from a Republican president. Members held hearings, voted in committee, and then voted again on the floor. There's a process, and the GOP followed it.

But just below the surface, there's no credible defense for the kind of maximalist political tactics Republicans have engaged in. They imposed an unprecedented blockade on a qualified Obama nominee, announced plans to effectively shrink the Supreme Court to eight unless Donald Trump was elected, and then rammed through a far-right nominee while Americans cast ballots.

To hear Rubio tell it, those details are irrelevant -- because there are literal, written rules in place, which he and his party did not break. And so long as a party is honoring those literal, written rules, no one has any right to complain.

During committee proceedings two weeks ago, one Senate Democrat characterized it as the emergence of the "because we can" rule.

"The rule of 'because we can,' which is the rule that is being applied today, is one that leads away from a lot of the traditions and commitments and values that the Senate has long embodied," Sen. Sheldon Whitehouse, D-R.I., said. "Don't think that when you have established the rule of 'because we can' that should the shoe be on the other foot that you will have any credibility to come to us and say, yeah, I know you can do that but you shouldn't because of X, Y, Z," he said. "Your credibility to make that argument in the future will die in this room and on that Senate floor if you continue to proceed in this way."

The political dynamic is striking in its simplicity: if you have the power, you exercise that power. Period. Full stop.

Norms and traditions are irrelevant. Propriety is irrelevant. Restraint is irrelevant. Values are irrelevant. Precedent is irrelevant.

If a political party is acting within the limits of the law, there's no reason for that party to pause in pursuit of its goals. Why did Republicans do this? Because they could. As Senate Majority Leader Mitch McConnell (R-Ky.) said last night, pointing to Democrats, "Legitimacy is not the result of their feelings. We're a constitutional Republic, the GOP leader added, and "elections have consequences."

Of course, what Rubio and McConnell have not acknowledged is the scope of such a posture. If, for example, Americans elect a Democratic president and Democratic Congress next week, those elections can carry "consequences," too. They'll have the ability to expand the size of the judiciary. They'll have the ability to extend statehood to D.C. and Puerto Rico. They'll have the ability to welcome four new senators to the chamber. They'll have the ability to end legislative filibusters and engage in progressive governance.

Those would certainly be extraordinary steps, unlike anything Americans have seen in recent memory, but to hear Republicans tell it, those are irrelevant considerations. If Democrats have the power, there's an expectation that they will exercise that power. There are no rules or laws preventing Democrats from taking such steps, so there's no reason they should show any restraint before taking them.

And when GOP senators howl about Democratic indifference toward norms, traditions, and values, and demand to know why the new majority is governing in such a maximalist way, it will fall to Democratic officials to say, "Because we can."