Why are Republicans (unlike Democrats) heavily criticized for their flip-flopping regarding the 2016/2020 US supreme court justice nominations?

Question

It's hard to be on the Internet currently without encountering heavy criticism of prominent Republican politicians over Trump nominating a Supreme Court justice so close to the 2020 US election. As per my understanding, criticism primarily highlights inconsistency in the Republican-led blocking of Obama's 2016 Merrick Garland nomination but support for Trump's 2020 Amy Coney Barrett.

What I'm not seeing is the same thing for Democrats. I.e., presumably Democrats similarly supported Obama's 2016 nomination and oppose Trump's 2020 nomination, which seems symmetrically inconsistent. To make this concrete, searching for "supreme court hypocrisy" in Google News, we find many articles about Republican hypocrisy (1, 2, 3, 4, 5, 6, 7, 8, etc.), and the only article that mentions the Democrat's symmetric flip-flop is Fox News.

Question: Why are Republicans (unlike Democrats) heavily criticized for their flip-flopping regarding the 2016/2020 supreme court justice nominations?

I've definitely seen some Republicans try to spin it around and claim Democrats are flip-flopping - but it's a much weaker position considering they have senate control in both situations. — Zibbobz, Sep 28 '20 at 12:33
It's a bad look for Republicans, for sure. Feigning some sort of moral crisis played well (?) at the time but that theater was unnecessary. Remember, the Rs pickup up 9 in the 2014 election. The swing from 45 to 54 seats was a mandate and the voters' message was simple: check the executive branch. Senate Rs knew their duty was to hinder executive action and that is precisely what they did. Roles reversed, I'd be mad too. Maybe I'd even call it flip-flopping. But I'd know that the system functioned as intended. While I didn't get my way, the peoples' will was done and that's the entire point. — acpilot, Oct 28 '20 at 18:04

score 184 · Answer 1 · edited Sep 28 '20 at 04:01

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The Democrats were in favour of appointing Garland in 2016, but now that the Republicans have set a precedent that Supreme Court Justices should not be appointed in an election year, the Republicans are being asked to stick to it. The Democrats are simply asking the Republicans to stick to the principles they used four years ago. The Republicans are the ones who changed the normal procedures in the first place, so they are the ones being called out for changing their mind again about how appointments in an election year should be handled. They have done two flip-flops, while the Democrats have just followed a step behind.

edited Sep 28 '20 at 04:01

KingLogic

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answered Sep 27 '20 at 08:52

user141592

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It should be noted the timing: Mitch McConnel denied the vote on Garland when the election was 10 months away, saying that it would deny the will of the people. Now we are less than 2 months away from the election, and they are not concerned about the will of the people at all. Republicans are claiming the damage that will be done if the court goes without its 9th member, while previously they made the court go MUCH longer without it's 9th member. – Issel Sep 27 '20 at 18:53
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@Upper_Case Let's move this discussion to chat. – Obie 2.0 Sep 27 '20 at 19:53
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Downvoted because this does not answer the question. The question is about the coverage in the media, not the Democrat position. Unless you assume they are one and the same... – Ertai87 Sep 27 '20 at 21:22
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@Ertai87 This is sometimes known as a frame challenge. – Tim Sparkles Sep 28 '20 at 16:43
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The precedent you give is inaccurate. In all 3 recent cases of Supreme Court nominees coming up during an election year, if the party opposed the President's selection, the representatives opposed it publicly. If the party was aligned with President, then they expedited/promoted the nomination. There is no evidence of flip flopping, since both parties have followed this standard consistently. It's just politics and recency bias that colors the opposing side as the "bad guy" – Shorlan Sep 28 '20 at 20:24
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@Shorlan "I support my side but not the other one when they do the same things" is the definition of inconsistency & flip-flopping. – J.G. Sep 28 '20 at 21:28
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@Shorlan, you are mistaken. All justices since Thomas in 1991 have been nominated when the president and senate control were under the same party. Souter and Thomas (1990 and 1991) had a Democratically controlled senate and Republican president (George W Bush). So for the last 30 years (at least) nominations had been held regardless of party control (contrary to what Republicans have said.) In 2016, the Republicans broke with that precedent and blocked a nominee from having a hearing and a vote. Now they want to go back to that precedent after breaking it because it is advantageous to them. – CramerTV Sep 29 '20 at 06:53
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In the past 100 years there has never been a block by the Senate to simply NOT VOTE on a supreme court justice, until Garland. In the only two other cases (Eisenhower & Harding) of a delay, both justices were voted on and confirmed within months of the initial appointment. Meanwhile, FDR and Reagan both had confirmations within election years, but both were within the first three months of the year (February and January). President Obama's nomination was stonewalled due to a shifting political strategy of "the ends justify the means" by "Republicans". – mkinson Sep 29 '20 at 16:54
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We shouldn't pretend Democrats wouldn't have rammed Garland through if they had controlled the Senate - and we shouldn't pretend Democrats wouldn't ram through their own appointee right now if they controlled the Senate either. It's what politicians do... they politic... – SnakeDoc Sep 30 '20 at 00:00
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While the arguments made in public might be inconsistent, the principle that the republicans are actually sticking to (which no one would ever say in public) is "we want our judges in, not yours". In that case its perfectly consistent. – user4574 Sep 30 '20 at 03:08
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@user4574 That's fair, it is the public statements from 2016 that are being held up as examples of hypocrisy in 2020. Both parties want to present themselves as reasonable and rational to the (assumed large) perntage of voters who care about these things and who are not die-hard followers of one or other party. It is this "presentation layer" that is being pointed at now, regardless of the realpolitik that many people also understand is going on underneath. Even that of course is a political maneuver - but it is often a successful one. The Republicans made some target statements in 2016 . . . – Neil Slater Sep 30 '20 at 07:50
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@SnakeDoc as far as I can tell if the Democrats had control of the Senate in 2016, they wouldn't have nominated Garland in the first place. Garland was a moderate intended to gather strong cross party support. This is pre-filibuster removal, so perhaps it wouldn't have changed anything, but under the current rules a much more liberal justice would have been a more natural pick to "ram" through. – Jontia Sep 30 '20 at 14:02
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@Jontia We're saying the same thing. If Democrats had control at the time, they would have done whatever they wanted - because it would have been legal/constitutional. They didn't have control, so they attempted to wage a war of public opinion, attempting to influence constituents enough to put pressure on the controlling party, Republicans. Obviously that failed. – SnakeDoc Sep 30 '20 at 16:13
The main reason to downvote this answer is because of its writing style, not because of content. When you introduce a fact which was not provided in the question itself, then you should not use that fact to draw a conclusion in the same sentence. You should not assume the reader has prior knowledge of that fact. – jpaugh Sep 30 '20 at 16:49

Graham · Answer 2 · 2020-09-30T07:25:27.157

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Why are the Republicans being criticized? Because in 2016 they didn't simply say it was party politics as the reason to oppose Obama's choice, nor even that they disagreed with his choice.

They chose to portray this as a matter of principle.

On principle, they declared that they believed a new Justice should not be appointed in an election year, because it would deny the people the ability to vote for someone who would appoint a Justice that the people approve of. That was the reason they gave in 2016. They said that it would be morally wrong to allow the appointment, and that they had a moral duty to oppose it.

So it doesn't matter what the Democrats say.

The Democrats could disband tomorrow, and it wouldn't matter. The Republicans declared a principle that they believed in 2016 should be established, and on principle they should follow it. In 2020, they have done precisely what they themselves declared in 2016 was morally wrong.

They're not being criticized for any party political business-as-usual. They're being criticized for failing to keep to principles they declared were important, which they've now broken. The charge against them is not a simple flip-flop, it's moral hypocrisy.

edited Sep 30 '20 at 07:25

answered Sep 27 '20 at 17:17

Graham

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In fairness, some Democrats argued that the Constitution required a nomination and a vote, so they were also sticking up for a principle, or said they were. – Obie 2.0 Sep 27 '20 at 17:37
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But of course it matters what the Democrats say because they also articulated a principle in 2016 and now they've broken it. – President James K. Polk Sep 27 '20 at 22:55
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@PresidentJamesK.Polk did any democrats say specifically that they would maintain the same position in the case of a republican president and senate? I didn't hear it. But the republicans did say that. It's like Gary Hart: his extramarital affair was far more scandalous than it otherwise would have been because he went out of his way to say that he was free of scandal. Here, republicans aren't just acting inconsistently with their behavior four years ago but with their claims four years ago about what their behavior would be under the circumstances that pertain today. – phoog Sep 28 '20 at 00:11
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@phoog - You are correct that Republicans have been much more hypocritical, and more openly so. But the fact that Democrats did not explicitly say they would maintain the same position does not absolve them of changing that position, although it does make them look somewhat better than Republicans, granted. A number of Democrats did say that the Senate had a duty to hold hearings during an election year, whatever their decision (#doyourjob) and Obama argued that he had a duty to nominate. Now, many Democrats have decided that this duty does not apply, and that the Republican precedent must – Obie 2.0 Sep 28 '20 at 01:46
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be respected. While I am willing to believe that some Democratic politicians may have made this change out of principle, it seems obvious to me that most of them changed their opinion because now it is not politically advantageous to maintain the idea that the Senate is obligated to hold hearings. – Obie 2.0 Sep 28 '20 at 01:49
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The thing you need to realise though is that in both politics and law there is nothing more important when it comes to deciding how to act than to follow precedent. So while the Democrats may have changed their position, they only did so following a change in precedent made by the Republican party. The Republican party on the other hand, having set the precedent, show no interest in following it. – Turksarama Sep 28 '20 at 09:43
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@Obie2.0 But like I said, it doesn't matter, because the Democrats could all disappear tomorrow and the Republicans would still be acting in a way they themselves have said is morally wrong. The Democrats' position is not that they have changed their opinion, it's that they believe the Republicans should follow what they stated as their moral duty back in 2016. If the Republicans don't (as they appear to intend not to), it represents a moral failure. The Democrats aren't the ones taking action, so their opinion is irrelevant. – Graham Sep 28 '20 at 13:38
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@Obie2.0 watch out for that synecdoche. Can you point at any specific Democrat who said #doyourjob in 2016 and today says wait as a matter of principle? I know of at least two specific Republicans with acutely hypocritical individual stances. – Tim Sparkles Sep 28 '20 at 16:59
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There is a bit more to the story to consider though. While there are many similarities to the 2016 situation, there are a few key differences that seem to be completely ignored. First, Obama was at the end of his 2nd term, he was on the way out guaranteed. 2, The Senate shifted to Republican majority despite Obama being in office. Electing a R senate during a D president (or vice versa) has significant meaning far beyond this comments size limit. There is also almost 0 reason to believe if the roles were reversed the Dem's wouldn't do the exact same thing, considering the court packing calls. – Ryan Oct 04 '20 at 08:14

score 65 · Answer 3 · edited Sep 28 '20 at 07:57

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The main reason for this is down to one question: who won the argument in 2016?

Because the Republicans had a majority in the Senate in 2016, it was them who decided how Obama's nomination would be handled. The position of the Democrats would not have affected the outcome in any way.

Similarly, in 2020, as the Republicans have a majority in the Senate, they decide how Trump's nomination will be handled, and the position of Democrats is not expected to affect the outcome.

Because Republicans were in control in both instances in time, with very similar circumstances, many wonder why they aren't treating it in the same way.

edited Sep 28 '20 at 07:57

CDJB

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Joe C

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Only people with no understanding of how politics work wonder why they aren't treating it the same. To everyone else, all politicians are hypocritical liars who will say/do whatever helps them the most in the moment/future. A lie is only a lie if you are caught afterall. And the only hypocrite in the room is your opponent, no matter what you said 5 seconds ago, you just had a 'change of heart' that will flop back if politically expedient. – Pliny Oct 06 '20 at 18:54
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@GarretGang and they were caught, so it is a lie. – Reasonably Against Genocide Oct 21 '20 at 10:40

score 45 · Answer 4 · edited Sep 29 '20 at 06:47

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which seems symmetrically inconsistent

No, they're not. The Republicans are asking that precedent established by them be disregarded because it benefits them. Democrats are asking that precedent be respected.

So it's not symmetric. There is a difference between arguing for A, then arguing for B, versus arguing for (A and B). Suppose your company offers you a company car, and you ask for an electric vehicle. They say "No, we're going to give you a gasoline-powered car". You say "Okay, let me have the keys so I can go to the gas station and put gas in it." They say "What's wrong with you? You shouldn't put gas in an electric car." You say "But you said you were giving me a gasoline car." They say, "Yeah, but you wanted your car to be electric, and you want to put gas in it. Since you want an electric car, and you want to put gas in your car, it follows that you want to put gas in an electric car." That's a silly argument, and it is similarly silly to argue "The Democrats didn't want to wait when they held the presidency, and they do want to wait now that they don't, so they are arguing that we shouldn't wait when they hold the presidency, but we should when they don't." The Republicans, on the other hand, are saying that we shouldn't wait when they hold the presidency, but we should when they don't. That's literally what Romney said. If you argue for A, and then once it's been determined that A is not going to occur, argue for B, that is not arguing for A and B. But if A does occur, then arguing for B is arguing for A and B.

It's perfectly reasonable to assert that always filling vacancies quickly is preferable to waiting until after the next election but always waiting until after the next election is preferable to sometimes waiting and sometimes not.

It's like lobbying for strict gun laws but owning a gun; it's not hypocritical to say that no one having a gun is preferable to everyone having a gun, but everyone having a gun is preferable to everyone except you having a gun. One can assert that making sure rules apply to everyone is more important than what those rules are. In fact, that's what the entire concept of "hypocrisy" refers to. By attacking Republicans' inconsistency, Democrats are implicitly asserting that consistency is a value in and of itself, apart from the actual positions that result.

Also, this vacancy is much closer to the election.

edited Sep 29 '20 at 06:47

Evargalo

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answered Sep 27 '20 at 09:31

Acccumulation

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It's not the same circumstances though. In 2016, the government was split. Republicans had just gained the senate, and took this to mean that voters wanted a check on Obama. In 2018, the Republicans maintained control of the senate, which meant voters were satisfied with Trump. McConnel did not say that they should never appoint during an election year. – Ryan_L Sep 27 '20 at 17:06
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@Ryan_L Notably, that was not something that was mentioned in 2016, and so comes across as a post-hoc rationalization for disregarding their own precedent. – Wossname Sep 27 '20 at 19:10
Downvoted because this does not answer the question. The question is about media coverage, not about the Democrat position. Unless you assume the media is parroting the Democrats... – Ertai87 Sep 27 '20 at 21:24
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@Ertai87 "The question is about media coverage, not about the Democrat position." The question is about media coverage of the Democrat position. "The Democrats are not being hypocritical" is clearly a valid answer to the question "Why is the media not accusing the Democrats of hypocrisy". – Acccumulation Sep 28 '20 at 00:09
Let us continue this discussion in chat. – Obie 2.0 Sep 28 '20 at 01:28
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The electric/gas company car example is incoherent -- only one car is involved in one instance, whereas the Q. is about two separate election year SC nominations. Perhaps a game example: A & B settle a conflict with a coin toss, A picks heads, heads comes up -- B objects "Unfair! In my house the up side is always the loser, so Tails won!", and A rolls eyes and says "whatever...". The next month A & B settle another conflict with a coin toss, A picks heads, tails comes up -- B says "I win! We're using your house rules today!" – agc Sep 28 '20 at 07:37
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@agc "The electric/gas company car example is incoherent -- only one car is involved in one instance, whereas the Q. is about two separate election year SC nominations." That's a non sequitur. That it is incoherent does not follow from there being only one car, and you don't provide any explanation for why you do think it follows. – Acccumulation Sep 28 '20 at 17:21
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sorry I cannot understand the car example at all. – qwr Sep 29 '20 at 05:28
I have to agree with others; the car example is complete nonsense. – TylerH Sep 29 '20 at 18:17
@qwr What don't you understand about it? It's presented to give an example of the principle that wanting A and wanting B does not mean wanting A and B. In the car example, A is electric car, B is putting gas in the car. Someone can want an electric car (A), and then, after being told they won't get one, want to put gas in their car (B), but that doesn't mean that they want to put gas in an electric car (A and B). What is confusing about that? – Acccumulation Sep 29 '20 at 22:05
@Ryan_L - Being about "split government" would be a political stance, which with the GOP in 2016 saying it was about allowing "the people" to weigh in during an election year, was claimed was NOT the case. If it's about their right to decline to confirm, then they should have declined to confirm, via voting it down. No vote. Problem is, they were on the record saying if Obama nominated Garland, specifically, instead of a crazy liberal radical, he'd have no problem with confirmation. The only actual difference in 2016 is that the vacancy happened much, much further in advance of the election. – PoloHoleSet Oct 27 '20 at 15:16

Barmar · Answer 5 · 2020-09-30T13:38:06.220

Others have answered about the hypocrisy angle, but I also see another difference this time.

In 2016, the Democrats knew that they would face opposition from the Republican Senate. So Obama deliberately chose a moderate candidate, Merrick Garland. He was clearly trying to offer the GOP a compromise by not nominating a far-left justice. But the Republicans didn't even give the candidate a hearing, let alone bring it to a vote. Had Mitch McConnell not been dead-set on blocking Obama's nomination, many expected that Garland would have sailed through the confirmation process.

On the other hand, with far less time until the election this year, Trump has nominated Amy Coney Barrett, an extremely far-right judge, and the Republicans are planning on rushing her confirmation to a vote. CNN wrote

Advocates on the far right have backed her possible nomination because of her writings on faith and the law. Religious conservatives were especially energized for Barrett when, during the 2017 confirmation hearing for her current judgeship, Democratic Sen. Dianne Feinstein of California suggested to her that the "dogma lives loudly within you."

The vote is most likely to pass, as only 2 Republican Senators have expressed objection to voting in an election year, and the Republicans used the "nuclear option" in 2017 to prevent filibustering Supreme Court confirmations.

It's like the Republicans are shoving it in the Democrat's faces that they have all the power and can do whatever they like to put forward their long-term agendas (overturning Roe vs. Wade, getting Obamacare declared unconstitutional, etc.).

Not only are Republicans going back on what they said in the past about this process, they're not even trying to offer anything to appease the Democrats. Why not? Because they don't need to.

And this is all on top of the total hypocrisy. Just two years ago, during the confirmation process of Brett Kavanaugh, Lindsey Graham went on the record, saying:

I'll tell you this – this may make you feel better, but I really don't care – if an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait until the next election.

One more point: On her deathbed, Justice Ginsberg reportedly told her granddaughter:

My most fervent wish is that I will not be replaced until a new president is installed.

She made a fervent wish for the Republicans not to flip-flop, yet they blatantly went ahead anyway, breaking promises and also disrespecting a great woman.

Comments are not for extended discussion; this conversation has been moved to chat. — Philipp, Sep 28 '20 at 22:15
Lindsey Graham's quote is spot on about Republicans painting a big target on themselves to be accused of hypocrisy. I am surprised other answers are not including it, because it is a direct invite from a senior Republican to be accused of hypocrisy - deliberately made in order to seem non-partisan in earlier decisions. The death bed thing is less so, and dubious part of this answer. The question is about the accusations of hypocrisy (and why they appear to stick one way but not another) and not about the rights and wrongs of the nomination. — Neil Slater, Sep 30 '20 at 07:58
@NeilSlater The deathbed request essentially asked for the Republicans not to flip flop. So I think it's apropos. — Barmar, Sep 30 '20 at 13:35
Indeed, I think a lot of the criticism is less about principles than about "we warned you that this would come back to haunt you, and now we are haunting as hard as we can." — Mark Wood, Sep 30 '20 at 16:27
Kind of, although it's like a ghost yelling "boo!" to a deaf person. — Barmar, Sep 30 '20 at 16:30

score 34 · Answer 6 · answered Sep 27 '20 at 18:12

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Suppose you and your friend had been playing a game many times for years. One day your friend decided to change the rules in the middle of a session in a way that was very advantageous to them. The next time the two of you played, the rule change would benefit you. So you suggested that you do the rule change again. But your friend was absolutely against it. Who is acting unreasonably? You or your friend?

answered Sep 27 '20 at 18:12

paw88789

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Let us continue this discussion in chat. – Obie 2.0 Sep 28 '20 at 01:51
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You're addressing game theory directly. Kudos. – Matt Murphy Sep 28 '20 at 23:39

score 23 · Answer 7 · edited Sep 28 '20 at 07:59

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The timing reinforces the case for waiting

In 2016 the gap in the Supreme Court opened in February. That meant that waiting for the election left the seat open for an extra half a year.

In 2020 the gap in the Supreme Court opened in September. In this case appointing a new justice before the election would require unusual haste, and delaying appointment until after the new president enters the office would only add a few months delay.

This means that "we should wait" is a stronger opinion than it was four years ago, and it's much easier to justify switching from "don't wait" to "wait" than it is the reverse.

edited Sep 28 '20 at 07:59

CDJB

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answered Sep 27 '20 at 15:21

Arcanist Lupus

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Historically though. 14 have appointed 21 during election years... 6 when their successor has been appointed. "We should wait" doesn't have history behind it... https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/29/one-third-of-all-u-s-presidents-appointed-a-supreme-court-justice-in-an-election-year/ "Americans took the Senate from Obama so his appointment won't get approved" has historical precedence though... plenty of rejections by the opposing Senate during an election year https://www.axios.com/cruz-election-year-scotus-ad1f371e-4547-4496-81d2-cdb895302325.html – WernerCD Sep 27 '20 at 19:01
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@WernerCD That may be so, but my argument isn't about whether or not the position is justified. It's just that it's more justified than it was 4 years ago. – Arcanist Lupus Sep 27 '20 at 21:58
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But is it "more" considering the basic fact that it was Dem/Rep 4 years ago and now its Rep/Rep... and not only is it Rep/Rep but Trump actually got MORE support in 2018? Timing doesn't change the fact that it's Trumps responsibility to submit a nominee - just like Obama did... and it's the Senates responsibility to do what they were voted in for... first to check Obama in 2016... now to Support Trump in 2020. – WernerCD Sep 27 '20 at 22:47
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@WernerCD - That sounds awfully like an argument for simple partisanship to me. It's a funny thing, huh? In 2016 only 21% of Republicans thought that presidents had a duty to nominate a justice in their final year. Curious, curious. If Democrats win the Senate but not the presidency, will you still be arguing that if Trump tries to fill another vacancy? – Obie 2.0 Sep 28 '20 at 01:31
@Obie2.0 both sides have "flipped" to a certain extent based on convenience. Same as every other time something like this happens. "Trump + Dem Senate" Then I expect a nominee will have to meet the circumstances - IE not a constitutionalist that's also demonstrably anti-abortion. I'll personally be consistent that D Potus+R Senate and R+R have seen expected results... and R+D would lead to outcomes I think we'd all expect as well - I'd not be surprised to see both sides switch again or to see Trumps nominee(s) rejected. – WernerCD Sep 28 '20 at 02:19
@WernerCD "plenty of rejections by the opposing Senate during an election year" do you have a citation for that? Your links do not support that claim. – TemporalWolf Sep 28 '20 at 16:59
@TemporalWolf https://www.republicanleader.senate.gov/newsroom/research/history-is-clear-senate-control-has-overwhelmingly-determined-the-fate-of-election-year-supreme-court-nominations 15 vacancies in election years. 8 times same as president - 7 confirmed. 7 times different senate from President - 2 confirmed. – WernerCD Sep 28 '20 at 17:58
@TemporalWolf Further reading https://www.abajournal.com/web/article/history-shows-how-scotus-nominations-play-out-in-election-years 1796-1968 - 29 open vacancies in election years. Nominations in all 29 cases by POTUS. 10/19 nominations before election day, 9 confirmed when both POTUS/Senate the same... POTUS/Senate opposite parties: 6/10 nominations before election day and 1 was confirmed. Shows both the importance of POTUS+Senate... (13 of those 29 nominations were made after election day - if I'm not mistaken, 6 were lame-duck before February) – WernerCD Sep 28 '20 at 18:14
@WernerCD That timeline conveniently leaves out Justice Kennedy, who was confirmed 97-0 by a divided Republican President and Democrat let Senate in 1988, the last year of Reagan's presidency. – TemporalWolf Sep 28 '20 at 18:20
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Yeah... Not sure why that article stopped at 68. It also leaves out garland... It seems the two sources I've placed here have different start /stop points which is annoying. – WernerCD Sep 28 '20 at 18:32
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@WernerCD It's also worth mentioning that in 2016 the rejection was by the Senate majority leader, not the Senate. The majority leader stonewalled the nomination by not allowing the Senate to vote... which I'd argue is not the same as the Senate rejecting the nomination. – TemporalWolf Sep 28 '20 at 18:39
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@WernerCD I agree with TemporalWolf: there's a big difference between holding a hearing and voting a nominee down, vs. not holding a hearing at all, much less a vote. – probably_someone Sep 29 '20 at 01:02

Peter · Answer 8 · 2020-10-28T08:20:30.410

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Precedent

Republicans proposed a new rule and introduced it successfully. Now they want to get rid of the rule.

Democrats opposed the rule, yet the rule was established over their objections. Democrats don't even have to mention where they stand on confirming Supreme Court nominees in an election year. Instead they argue that Republicans should be bound by the precedent they created.

Magnitude

The rule the Republicans introduced was against nominations in an election year, specifically it was against filling a seat that became vacant on February 13 2016, 269 days before the election on November 8 2016, with a nomination that required 60% of the Senate votes to confirm.

The current seat became vacant in September 18 2020, 46 days before the election on November 3 2020, and Republicans have since changed the rules to only require 50% of the Senate votes to confirm.

The average number of days from nomination to final Senate vote since 1975 is 67 days.

There is no hypocrisy in arguing that 46 days and confirmation with 50% support is too close to the election while 269 and confirmation with 60% is not.

Credibility of the Supreme Court

Republicans, in an unprecedented move, have repeatedly indicated that they will not accept the results of the 2020 election and intend to challenge the results before the Supreme Court. Therefore a last minute appointment of a very partisan judge will harm the credibility of the Supreme Court even more than it would under more common circumstances.

edited Oct 28 '20 at 08:20

answered Sep 27 '20 at 22:28

Peter

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It was not a new rule at all; it's a long-standing precedent that's held for over 100 years. Historically, it has usually worked out in Democrats' favor, but now that it hasn't for two times in a row, Democrats are freaking out and trying to gaslight everybody by pretending it's some brand new, unprecedented thing. – Mason Wheeler Sep 28 '20 at 16:25
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@MasonWheeler Is that so? https://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/ – Azor Ahai -him- Sep 28 '20 at 16:41
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@AzorAhai--hehim Yes it is. The precedent has two parts: when the President and the Senate majority are of the same party, a nominee in an election year gets confirmed. When they are not, a nominee in an election year does not. This is a well-established pattern that's held true for over a century. Check the examples given in your linked article, all of them either feature the Senate being of the same party as the President, or were not in an election year, or were the highly unusual case of Abe Fortas which doesn't really count for the reasons I gave in my answer. – Mason Wheeler Sep 28 '20 at 17:44
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@MasonWheeler, it was a new written/explicit rule. Whether it was based on historical fact or fiction doesn't really matter, except that it was based on fiction. https://www.brookings.edu/blog/fixgov/2020/09/24/mcconnells-fabricated-history-to-justify-a-2020-supreme-court-vote/ – computercarguy Sep 28 '20 at 18:49
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@masonwheeler The question did not dispute the generally agreed on facts surrounding the case, that's why I see no need to discuss this specific alternative history here. I suggest you raise it in a more appropriate place: skeptics.se – Peter Sep 28 '20 at 19:39
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@MasonWheeler my understanding is the nominees are not usually confirmed, but they are usually vetted, debated and voted on. The 2016 stance was more extreme than that. – Jontia Sep 29 '20 at 08:37
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@Jontia That happened the last time in 1956. Nominations by Johnson in 1968 (filibuster) and Obama in 2016 (no action) did not follow that precedent. Kennedy was nominated by Reagan and confirmed by a Democrat majority Senate 97-0 in February 1988, but the vacancy opened in 1987. So this revised "precedent" asks the people to ignore what happened in the last 64 years, and pretend we're back in '56. – Peter Sep 29 '20 at 13:25
@Jontia: I detest duplicity. I kind of wish the Repulicans had executed their plan without it, by scheduling the debate to start November the 3rd. – Joshua Sep 30 '20 at 03:34
@Joshua that would have been an extraordinary delay. They could have just had a hearing and a vote in april/May and voted. But that might have led to having to explain. – Jontia Sep 30 '20 at 05:41
@MasonWheeler - No nominee, nominated that far in advance, was ever refused even a hearing, interview or vote, with the party in charge claiming it was because it was an election year. It was completely unprecedented. This isn't about a nominee not being confirmed, it's about a nominee never being considered - a nominee the party in control of the Senate specifically named as one they would have no problem approving. You claiming there is any kind of historical analog, let alone a declared "rule" to justify it, is specious, to say the least. – PoloHoleSet Oct 27 '20 at 15:20
@PoloHoleSet Perhaps. It probably would have been best to hold the hearing and decline to confirm him, just for the sake of decorum. But on the other hand, I can see the point in just admitting reality is what it is: he had no chance of getting confirmed by that Senate, so why waste time on the hearing? – Mason Wheeler Oct 27 '20 at 20:01
@MasonWheeler - Because the USA is supposed to be a democratic nation, and the people have the right to see and hear how their government is operating. The REPUBLICANS said "if Obama would nominate someone like Merrick Garland instead of a radical liberal, he'd have no problem getting him confirmed" - so that's who Obama nominated, and the GOP should have to justify actual reasons why they won't confirm the guy they said they'd be happy to confirm. They have a Constitutional duty to give advice and consent for nominees. They don't get to ignore that. – PoloHoleSet Oct 29 '20 at 16:06
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@MasonWheeler - But that's a deflection and side conversation from the fact that your claimed "precedent" for this is completely fictional. – PoloHoleSet Oct 29 '20 at 16:07
@PoloHoleSet No, the USA was never supposed to be a democratic nation. It was supposed to be a constitutional republic, with all manner of anti-democratic checks and balances intentionally built into the Constitution as safeguards against the worst abuses of majoritarianism, and it's quite distressing to see so many of them under attack today. The principle of Chesterton's Fence definitely applies here! – Mason Wheeler Oct 29 '20 at 18:20
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@MasonWheeler - Wrong. I didn't say "a democracy," or "direct democracy," I said "democratic." A republic is still, fundamentally, a democratic system of government. If you're going to try to parse language and play semantic games, you need to actually correctly understand the terms. The people, through the vote, choose representatives to run the government. That is "democratic," which is the term I used. Which is still a side issue to your original claim. I get you want to change the subject, but the precedent you claim is fictional, still. – PoloHoleSet Oct 30 '20 at 15:56
@MasonWheeler - "A representative democracy is a form of government in which representatives are elected to make policy and enforce laws while representing the citizens. All modern *democratic* countries are representative, not direct, democracies. A representative democracy is also known as a *republic.*" https://dlc.dcccd.edu/usgov1-1/the-meaning-of-democracy – PoloHoleSet Oct 30 '20 at 16:01
@PoloHoleSet "the precedent you claim is fictional, still." Keep repeating the lie enough times and people will think it's the truth? The precedent, exactly as I said it, has held solid exactly as I said it has. It's telling that every "exception" that's been mentioned is only an exception to something other than the actual rules I stated. – Mason Wheeler Oct 30 '20 at 17:32
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@MasonWheeler - There is no precedent for leaving a seat vacant that long due to entirely refusing to take up a nomination, at all. There's certainly no precedent for refusing to even consider a nomination for a year claiming it's because of an election. Comparing what happened to a "precedent" that is completely different makes it not actually a precedent. – PoloHoleSet Nov 02 '20 at 20:01

score 14 · Answer 9 · answered Sep 27 '20 at 20:46

If the Senate were able to perform their constitutionally mandated duty to "advise and consent" on Merrick Garland, that is, if there was a hearing and Republicans voted Garland down fair and square 49-51, that would have been as remarkable now as Robert Bork, Douglas Ginsberg, or Harriet Miers as a Supreme Court nominee who didn't make it through the nomination process. Interesting, to be sure, but the political process operating normally as everyone expects and delivering an outcome that is within the decision tree and has been seen before.

But that's not what happened, Mitch McConnell made up a new rule, breaking norms (and notably denying this vote from being on the record of incumbent senators). Notably the Democratic Obama administration did not also break norms by seating Garland as a recess appointment, an arguably legal but not normal path available at the time.

Now Republican senators have to defend their 2016 acquiescence in tandem with their 2020 acceptance of McConnell making procedural power plays unhinged from saying what happened in 2016 is a "new normal"

Obie 2.0 · Answer 10 · 2020-09-28T01:42:53.070

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The other answers provide some reasons, but here is another one: because the Republicans have been demonstrating their partisanship for four years, and people do not judge political decisions in a vacuum.

The Democrats do not control the presidency and the Senate, and they are less partisan overall (asymmetrical polarization). Thus, during Trump's presidency the public has been treated to many examples of the Republican willingness to ignore laws, rules, and decency in the pursuit of self-interest. For instance, almost every Republican member of the Senate voting to acquit him of serious misconduct, Trump subjecting the country to a shutdown unless he received money for his fabled border wall, and of course Trump's statements about preventing his opponents from running or only conceding if the results are positive for him.

The nomination of Barrett is viewed through the lens of all these previous actions. They render it difficult for Republicans to plausibly make the same argument as Democrats, that their change of opinion is actually a matter of principle, because people recognize that principle has not been a major player in the Republican party in the last several years. Further, Trump is the one taking the action, which naturally causes people to focus on the Republican party. Thus, the Republican position here is viewed as a more serious manifestation of political inconsistency than if it had occurred in isolation, and the Democratic change of opinion attracts less attention and scrutiny than it otherwise would.

edited Sep 28 '20 at 01:42

answered Sep 27 '20 at 17:56

Obie 2.0

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It is not remotely true that Republicans are more partisan than Democrats. You provided no evidence for that...only for your own partisanship and bias. This answer seems to make no attempt to actually address the question. – farnsy Oct 05 '20 at 21:18
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Well, you could go for the other answers which are even less flattering to the "Grand" Old Party instead. Your choice. – Obie 2.0 Oct 05 '20 at 22:55
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The other answers have basis in truth, even if their interpretation is slanted. This one does not. It's not really about flattery. – farnsy Oct 06 '20 at 04:32
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It is a recognized scientific phenomenon, asymmetric polarization. https://www.google.com/amp/s/amp.theatlantic.com/amp/article/373044/. Although there may have been some changes in recent years, I do not see any reason to believe that they have been enough to cancel our the larger trend. – Obie 2.0 Oct 06 '20 at 04:52
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Also look at what this article says: https://www.motherjones.com/kevin-drum/2019/04/republicans-are-way-more-partisan-than-democrats/. That sort of survey is not an outlier. There is consistently more dissent from the average Democratic view within their party than within the Republican Party. Democrats are also more likely to hold their party members accountable. – Obie 2.0 Oct 06 '20 at 04:57
Try searching the opposite result in conservative media outlets. You will find plenty of evidence. Or better, ask questions not designed to give a certain answer. Loyalty has always been a conservative attribute. Questions designed to test this and calling it partisanship show what the author wishes. For example when you ask whether the other party has any good ideas that should be considered you find conservatives more open and liberals more bigoted. I do appreciate your effort to support your claim but your original answer as written is very poor. – farnsy Oct 06 '20 at 05:28

Mark Rogers · Answer 11 · 2020-10-01T19:08:33.733

Notably Lindsay Graham said (which I posted as a now deleted comment)

"I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination,' " he said in 2016 shortly after the death of Justice Antonin Scalia. "And you could use my words against me and you'd be absolutely right".

_{Source: Npr "'Use My Words Against Me': Lindsey Graham's Shifting Position On Court Vacancies"}

Senator Lindsay Graham said this during the Obama administration and now is openly taking the exact opposite position. Its hard to come up with a more hypocritical position in much of political history, certainly many hypocrisies may be considered equal to that, but few exceed it.

So then the argument from conservatives becomes 'well, all politicians are hypocritical, its just how it works'. I would challenge that assumption, politicians in a democracy are as hypocritical as their voters allow them to be. If voters feel that someone is hypocritical or is constantly lying, there's no mandate that voters re-elect them. In fact the voters are likely better served by those who are closer to honesty than deception. At least then you know what you are actually voting for when you elect a leader.

If all leaders were expected to never engage in honesty, society would become more and more rife with corruption, inefficiency, and stagnation. Much as it is in Russia.

Joseph Hansen · Answer 12 · 2020-10-30T17:06:35.730

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There are three main differences between the 2016 event and the 2020 event.

In 2016, there was not a famous, recent precedent.
In 2020, there is a month until the election. In 2016, there were nearly 9 months between nomination and election.
In 2016, the party that did not control the presidency argued on principle that the Senate should wait. In 2020, the party that did not control the presidency argued that we should do what we did just last time. Different arguments.

That is likely why the argument is so much more in favor of Democrats in the media—because analysis shows the two situations are different and in 2020 the Democrats have a legitimate, objective complaint (as opposed to an entirely partisan complaint).

Disclaimer: I'm trying to be non-partisan in my answer. I don't believe one party is always right or has all the answers.

edited Oct 30 '20 at 17:06

answered Sep 28 '20 at 23:25

Joseph Hansen

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in 2016, a confirmation required 60/100 votes, in 2020 it requires 50/100 votes.

Peter

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@Peter - not a substantive difference, since the party of the President offering the nomination in 2016 did not have 50 votes, nor 60. If it required 50 votes then, I'm not sure how that would have been different, since no vote was ever held, at all. – PoloHoleSet Oct 29 '20 at 16:45

@PoleHoleSet The relevant part is that due to the 60 vote limit in there was still an expectation that a Supreme Court nominee required bipartisan support, regardless of who holds the Senate and who holds the presidency. So Garland was nominated in the context of a long established bipartisan process, while Barret was nominated in the context of a relatively new purely partisan process. Since the 2016 argument was to "wait for the voters to speak", it is relevant that the 2020 50/100 confirmation process speaks for significantly fewer voters than the 2016 60/100 confirmation would have. – Peter Nov 02 '20 at 21:43

score 6 · Answer 13 · answered Sep 28 '20 at 14:41

Neither side is being hypocritical, because anyone assuming that the senate works from principles as opposed to party tribalism is naive.

Both parties have been completely consistent, in that: they're going to vote with whatever helps their party out. The supposed reasons that are given are just post-hoc justifications (which pretty much just makes them liars.)

Even Lindsay Graham's quote. It was an idiotic decision, but it was a rhetorical tactic to try to make it seem like he had principles. "No, really, this is what I firmly believe down to my core, not just because it happens to benefit my party. Trust me. If this ever comes up the other way, I'd support the other side." I'm not sure anyone actually believed him back then - but hopefully it's clear now that... yeah, he wasn't actually articulating an actual principle. It was just a justification for the actual principle being held (party above all.) And it's not like 2020 and 2016 are our only data points - the politicians in question have been doing this for awhile: there was yet another flip-flop during Bush's appointments as well.

So, as to the actual question? Why are there so many callouts to Republican flip-flops, and not for Democrat ones? Because there have definitely been flops.

Sadly, it's the same thing: tribalism over principles.

In a way, it's been funny to see news outlets do the exact same thing as the politicians. Fox News? Back in 2016, it was all about "No, it's not precedent to do this"; in 2020, it's "Whoa, hey, look at these Dems that flip-flopped back in 2016!" CNN? Back in 2016, it was all about, "Look at these Repubs trying to obstruct!"; in 2020, it's "Man, Lindsay Graham is such a hypocrite!"

Fox News and CNN are not reporting these because they're principled. But just like the politicians, they come up with a reason why it's not hypocritical. "It's because the opposition party held the senate in 2016", "They made this about principles and said they wanted us to hold them to their word", "Our objection was about a categorical rejection of any nominee", etc, etc, etc. That's the important thing to keep in mind: when Fox News is calling out Pelosi/Schumer and CNN is calling out Mcconnell/Graham, they're not doing it because they're staunch opponents to hypocrisy. They're doing it because it helps their side.

So, the question of who gets called out is mostly who you listen to. If you consume mostly Fox News, DailyWire, etc - you're going to hear about Democrat flip-flops; if you consume CNN, MSNBC, ABC, etc - you're going to hear about Republican flip-flops. They might have ostensible reasons for why they're only calling out one side... but it's not the actual reason for the call-outs.

A mismatch between one's stated beliefs and actions is pretty much the definition of hypocrisy. The fact that one's stated beliefs are not the true beliefs is kind of the point. The argument that no one is being hypocritical because they're remaining true to their underlying, unstated beliefs makes little sense to me. Consistent behavior of actions defying words doesn't make you not a hypocrite, it makes you a predictable hypocrite. — Nuclear Hoagie, Sep 28 '20 at 16:02
@NuclearWang - nah, I'd go further and say it's an outright lie. "X should happen because I believe Y." No, they don't believe Y. It's just an excuse they're making up in the current context. If they actually believed Y and then turned their back against it - sure, it's hypocrisy. I'm saying they didn't believe it in the first place - they're not hypocritical, because they were lying to begin with. — Kevin, Sep 28 '20 at 16:22

qwr · Answer 14 · 2020-09-28T06:36:28.220

Republicans and Democrats will make decisions when politically expedient and come up with reasonings like "precedent" and "will of the people" to justify it. In 2016 it was Democrats saying "do your job and give Garland a vote", with Republicans opposing with "let the next president decide", and now in 2020 it is Republicans saying "do the job we were elected to do", with Democrats opposing with "let the next president decide". This symmetry is noted in the original question.

Of course, precedent is important, but Congress is not truly bound by precedent, but by law. Here is a brief history of the "nuclear option" to remove the 60-vote of cloture, including its relevant Supreme Court nominations:

In 2013, Senate Democrats vote to remove the 60-vote rule for all nominations other than for the Supreme Court, instead using a simple majority. The rationale was in response to Republicans filibustering nominations under Obama. (Interesting foreshadowing: Mitch McConnell warns Democrats that they will regret this, and sooner than they think.)
In 2016, Senate Republicans refused to consider Garland's nomination.
In 2017, Senate Republicans voted to remove the Supreme Court exception from 2013, after Senate Democrats filibustered the nomination of Gorsuch.

If you take what Republicans said in 2016 as precedent, then they appear hypocritical. If you consider the Democrat's invoking of the "nuclear option" from 2013 and the 2017 vote by Republicans to remove the Supreme Court nomination exception, then there is no hypocrisy from Republicans, as they voted on this exact rule change in 2017. Notwithstanding precedent, Republicans are within their full legal capability to invoke majority rule.

To answer your question: it depends on which media outlets you listen to. If you listen to CNN, then Republicans are being hypocritical. If you listen to Fox, then Democrats are being hypocritical (the Fox link you cited). The issue is highly partisan and you may see an imbalance because there are far more liberal media journalists than conservative media journalists and Google News as an example promotes more liberal news organizations than conservative ones. (Original study)

The Q. is about the reasons for a particular critique. It's not about whether the critique is universally admired, nor is it about counter critiques and apologists. — agc, Sep 28 '20 at 07:52
Did the text of the 2017 rule change include some reference to the 2016 "no last year appointments" debate? — Jontia, Sep 28 '20 at 09:05

score 0 · Answer 15 · answered Oct 28 '20 at 10:34

In addition to the other answers, the time frame is different. Scalia died February 13th 2016, and the following day Mitch McConnell stated that the senate would not consider anyone put forwards by Obama.

Meanwhile Ginsburg died 19th September, much closer to the election. So if February was too close to the election for it to be fair to confirm a new Supreme Court judge, surely the argument is even stronger when the vacancy occurs 7 months later.

farnsy · Answer 16 · 2020-09-28T07:39:52.820

-1

Your question and many of these answers seem to be overestimating the importance of principles here.

Republicans didn't oppose Garland's opposition because they believe in the principle that late presidents shouldn't appoint supreme court justices. They didn't do it to honor Scalia. Those explanations were made up to justify their actions.They did it because they could and it benefited them. It's been done in the past and they were able to do it, so they did. No new precedent was established nor ignored. The precedent is that parties do what they can to further their interests. It was respected by both parties in this case.

Democrats weren't angry about Garland because they believe that presidents should be able to appoint justices at any point in the presidency. They were angry because the way things went down worked against them. If the situation today were reversed, both sides would be arguing for the same thing they did last time. As it happens, they switched sides on the issue.

Democrats and Republicans do hold and follow certain principles as part of their philosophy, but timing of supreme court justices is not one of those principles, so they both do whatever benefits them at the time.

Now the question of why you seeing so much criticism of Republicans and none of Democrats? Because you are consuming media that is dominated by Democratic voices. Almost all media is, including the majority of answers and up/down votes on this site. It's no more complicated than that. See qwr's answer for more details on media bias numbers.

If you look for hypocrisy on either side of the political aisle, you will find ample examples in both recent and older history. In politics, people easily see hypocrisy in those who oppose them and ignore it on their own side. That's the way people are. Rationalizations follow desires and beliefs, in politics more than anywhere else. It is not the case that Republicans are more hypocritical than Democrats are nor vice versa. However, if almost everything you read is written by one side of the political divide, then even if you are not involved in the politics, you will begin to have the same bias as the authors. In order to understand what's happening accurately, we need to be able to detach ourselves from our biases and those of the media we consume.

[edit] An addition point is that Republicans were successful in getting their man into the court and are likely to win the second time. Political maneuvering is easier to call out when it is successful. However, as we have seen from past situations, there are many outlets eager to point out Republican maneuvering, successful or not, while Fox News is the only major outlet watching Democrats for this type of thing.

[second edit] Many folks seem to see this answer as an opportunity to defend virtuous Democrats against foul Republicans or to cast a vote for Democrats. That illustrates the cognitive bias I'm talking about here but is otherwise pointless. The OP is aware of the facts, seems not to be captured by one side or the other, and sees a bias in the media response. I'm not here to defend or advocate for Republicans, only to help the OP understand the source of the bias they have already observed.

edited Sep 28 '20 at 07:39

answered Sep 27 '20 at 20:57

farnsy

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You are wrong about why it is Republicans getting criticism instead of Democrats. It was Republicans who block a nomination in 2016 because the "primary" process had already started. Now you have Republicans that appear to be ready to attempt to push through a nomination through even though voting for the election has already started in many places in the country. Right now the focus is on a pair of acts that appear to be politically motivated to help the Republican party. We can't look at possibilities about what may have happened had things been reversed but focus on what did happen. – Joe W Sep 27 '20 at 21:37
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No, what you are pointing out is just details that are used to support one side of the argument. If you switched the parties the same actions would have happened with the same degree of hypocrisy in the rhetoric. If you think there's a difference in principle, you may be responding to the bias I mentioned in my post. I do think you are right that part of it is that republicans were successful. People don't criticize failed attempts at political maneuvering as much as successful ones. Maybe I should have mentioned that. – farnsy Sep 27 '20 at 21:43
This isn't something that matters what others may do in similar situations but what someone is currently doing now. Sure politics is dirty and people will be hypocritical but that doesn't mean you can let someone off the hook for being extremely hypocritical in a situation like this. Saying something can't be done because the primary process in in progress but saying it is fine when the actual election is happening. – Joe W Sep 27 '20 at 23:20
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Also you need to look at the fact that Republicans are in control for both of the situations after they refused to even hold a hearing in 2016 the Democrats are just asking the Republicans to live up to the standards they set in 2016. – Joe W Sep 27 '20 at 23:28
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@JoeW No argument here about letting anyone off the hook. What I'm writing is just about what is happening, not what should happen. Many answers here start with the assumption that Republicans are evil and Democrats are not and then work hard to support that with universal principles. You don't get truth that way. What's really happening both now and then is politics as usual on both sides but there are a couple of reasons Republicans are getting the criticism. The most important is the sheer number of Democratic voices and biases in the media and social media. – farnsy Sep 28 '20 at 00:03
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The first paragraphs are correct about the real reasons behind the republicans' actions, but ignores the fact that these real reasons were not the ones given by the republicans in public to explain their actions. If the republicans are not being up front about their real reasons, they are acting with hypocrisy. That's true regardless of one's political inclination or preferred source of news. Political inclination only affects how willing one is to excuse or accept a given politician's hypocrisy. – phoog Sep 28 '20 at 00:19
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-1: If you are going to assert claims like that Democratic hypocrisy is being ignored due to media being dominated by Democratic voices, you're going to need to back that up with evidence. Similarly, if you are going to assert that they're equally hypocritical, you need to do more than just assert that they're both undertaking political manoeuvring. It is possible for political manoeuvring to be done in a non-hypocritical manner - you can be partisan and consistent. If you wish to claim that both sides are being hypocritical, you need to actually provide your reasoning for that part. – Glen O Sep 28 '20 at 00:39
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@GlenO The OP appears to come from a neutral place and therefore can see the hypocrisy of the Democratic party and media in this case--no need to dig through the long and deep history of both parties for evidence. Other posters here have strained to establish a universal principle that makes Republicans wrong and Democrats right. My point is that to the unbiased eye, those attempts don't really hold up. Stack Exchange can be a popularity contest and objectivity in politics is very rare and unpopular, but I think the OP may recognize and benefit from a little. I imagine you could too. – farnsy Sep 28 '20 at 01:01
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@GlenO This survey. Table 1. Very conservative: 0.46%. Somewhat conservative: 3.94%. Moderate: 37.12%. Somewhat liberal: 40.84%. Very liberal: 17.63%. That's 58.47% admitting to being left of center, and just 4.4% right of center. 13 liberals for every conservative. – user76284 Sep 28 '20 at 02:44
@farnsy - If you want to assert that they're wrong about the difference, that's fine, but you need to provide more backing than just assertion, especially if you're going to assert something that can be considered a subjective claim about relative proportions. – Glen O Sep 28 '20 at 05:05
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@user76284 - let me quote the start of the abstract: "We survey 462 financial journalists". Let me emphasise the relevant bit of that. "financial journalists". As this is not about financial reporting, your numbers are irrelevant. It's also not America-specific, and America is a lot more right-leaning, politically, than most other countries. Furthermore, it's statistics on those who replied, meaning there's a self-selection bias involved. – Glen O Sep 28 '20 at 05:14
@farnsy - One last thing. Unbiased doesn't mean "considers both side to be equally good/bad", it means "looks objectively at both sides". Republicans then: "We should let the American people have a say", Republicans now: "We were elected to do this, we should do it now even with an election 6 weeks away". Democrats then: "That's not the standard we have applied". Democrats now: "That's not the standard you have created". Democrats can't be called hypocritical for the mere act of calling Republicans hypocritical on the issue, and then both treated as equally bad. – Glen O Sep 28 '20 at 05:19
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@GlenO "America is a lot more right-leaning, politically, than most other countries." What a silly comment. Have you ever traveled outside the United States? Have you ever been to a non-Western country? Furthermore, is America not exactly the subject of this question? – user76284 Sep 28 '20 at 06:01
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@GlenO Here's another (earlier) survey of 1,080 US journalists: 28.1% identified as Democrats, 7.1% as Republicans. That's fewer than a decade before, so the disparity is likely even larger now. – user76284 Sep 28 '20 at 06:18
The media being dominated by Democratic voices is supported by evidence, but should be included in the answer. – qwr Sep 28 '20 at 06:45
@qwr I see you did so in your fine answer, so I won't duplicate your effort here. – farnsy Sep 28 '20 at 07:36
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This answer conflates the possibility of bipartisan cynicism in the Senate with the fact of non-cynical public opinion. Tricky dealings offend public sensibilities, which is why cynical pols must pretend to be plain dealers -- if political cynicism were truly universal there would be no need to conceal it, but pols do conceal it, and sometimes even commit further crimes to conceal it. – agc Sep 28 '20 at 08:17
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@agc That seems true in general, but I question whether what you describe is the case here. Are Republicans unhappy with the choices their politicians made? Do they consider these actions hypocritical or tricky? That's not my impression. Lay Democrats and media are up in arms and claiming it's on principle but their argument is not altogether logical. I believe everyone involved is going through the motions. Politicians acted in the interests of their constituents in a predictable way. Now media and constituents have a script (same old) about how awful the other side is. That's all. – farnsy Sep 28 '20 at 17:07
@farnsy, Re "a script (same old) about how awful the other side is": And the very fact that they all must take the trouble to do that is a tacit acknowledgement that public revulsion regarding immorality is powerful. However hypocritical it might seem, pointing that awfulness out is strongly in the interests of constituents; these reciprocal critiques help the public learn about and weigh the relative faults of each side. Like how one monkey helps another monkey by picking bugs out of the other monkey's fur, and vice versa. – agc Sep 28 '20 at 17:25
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Another answer downvoted for being too pragmatic in a political discussion. Though you might as well copy the sources for media being dominated by left leaning publishers. It's sad we can't be objective about that yet. It's nbd, but painfully obvious. I agree whole heartedly the republicans were extremely hypocritical in this situation, but as you say, that's not the point. – TCooper Sep 28 '20 at 20:55
@tcooper At the time I wrote this I think mine was the best answer but there are several others at least as good or better now so it doesn't matter much. – farnsy Sep 28 '20 at 23:25

score -2 · Answer 17 · edited Sep 28 '20 at 13:46

-2

Mainstream media bias, plain and simple.

I know it’s a cliched term at this point, but when I say “mainstream media”, I’m referring to the big 3 cable news networks (CNN, MSNBC, and Fox), the big 3 broadcast networks (CBS, ABC, and NBC), and the two largest newspapers in the country (The New York Times and the Washington Post). These outlets dominate most news coverage in America, and all of them (except Fox) are left-leaning in their coverage (sources: AllSides, Investors Business Daily, Harvard, etc.

Although Republican presidents receive more negative coverage than Democrat presidents do (Bush was 57% negative vs just 41% for Obama), Trump has been the overwhelming target of relentless negative coverage since he was elected (80-95% depending on the time frame).

Put simply, Democrats and most of the major news outlets agree with each other ideologically. That’s why you don’t see a lot of criticism of Democrats’ hypocrisy. It’s an error to rely on their coverage to formulate your perspective on the matter.

If you scope your search to more right-wing outlets (Fox, National Review, The Federalist, the Daily Caller, the New York Post, Washington Examiner, etc), you will undoubtedly see the criticism cut in the other direction. These news sources, however, make up a much smaller share of American news coverage.

On a side note, all politicians have an agenda (it is, after all, their job). Ironically, they are all quite principled on whatever that agenda is. Unfortunately, scant few are actually honest about it, preferring to make an appeal to whatever principled reason is more politically convenient at the time to justify their position.

In 2016, Republicans didn’t want Obama — a President they made it their mission to obstruct — to nominate what they perceived to be another SJW judge to SCOTUS. Full stop.

Mitch McConnell didn’t have to waterboard everyone with some BS excuse about nominees in election years or whatever. All he had to do was say “No” and leave it at that.

In 2020, Democrats don’t want Trump — a president they despise — to get another bite at the SCOTUS apple. It’s sure fun to point out Republicans’ hypocrisy this time around, but we need to stop pretending it would be any different if they were in charge.

edited Sep 28 '20 at 13:46

CDJB

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Wes Sayeed

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If you wanted to prove media bias, you'd need to show that Mitch did just say "No" and leave it at that. There are several answers below that make clear he could have done that. And I agree. The thing is that he didn't. He chose to make up a reason that applies again today, and he isn't sticking to it. Reporting those facts is not bias. – Jontia Sep 28 '20 at 11:23
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One's choice of news outlet will certainly affect the light in which political figures and policies are portrayed. But regardless of potential media bias, polls consistently show that more Americans think the SCOTUS seat should be filled by the winner of the election. More people disagree with the Republicans' stance than disagree with the Democrats' stance, so the notion that there's more criticism of the Republicans isn't just a function of media bias - there really are more people criticizing the Republicans. – Nuclear Hoagie Sep 28 '20 at 14:23
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" the two largest newspapers in the country (The New York Times and the Washington Post)"... This is just false. The biggest newspaper in the USA is the (right-wing) WSJ : https://www.statista.com/statistics/184682/us-daily-newspapers-by-circulation/ – Evargalo Sep 29 '20 at 07:02
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"but we need to stop pretending it would be any different if they were in charge." [citation needed]. The last time this happened it happened in reverse, in 1988, where Justice Kennedy was nominated by Reagan (R) and confirmed by a Democrat led senate 97-0. The Democratic party has not shown a propensity to do this, in fact the opposite. It's amazing to me how the standard defense has shifted from "We didn't do anything wrong" to "You'd do just as much wrong in our shoes." That's not a defense. It's hypothetical whataboutism. – TemporalWolf Sep 30 '20 at 18:46
While you can pose primarily negative coverage as ideological bias of the coverer rather than the coveree simply doing...a lotta negative things, the truth would probably lay somewhere in between. Unless blindly following the leader is the new "ideology", which isn't a possibility to discount nowadays either, I guess. – Christian Rau Oct 28 '20 at 18:01
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Question: If the Dalai Lama gets/got more positive media coverage than Charles Manson or Jeffrey Dahmer, is that an indication of bias? (exaggerated example, I'm not equating either cited President as one or the other - I'm illustrating differences) I'm struggling with why you seem to think that two completely different presidents, dealing with different situations, with different results should get identically positive or negative news coverage. Should the captain who sunk the Titanic get equally positive coverage as a salvage crew that raises it from the ocean floor? – PoloHoleSet Oct 29 '20 at 16:50

score -3 · Answer 18 · answered Sep 27 '20 at 20:37

The Republicans wanted to oppose Obama's Supreme Court nomination, since Obama was a Democrat, but now, Republicans are changing their mind since the incumbent president is a Republican, Donald Trump. They only used "nominating someone to the Supreme Court in an election year is bad practice" as an excuse to not support the Democratic Supreme Court nomination. However, this time, it's different. Donald Trump is trying to get a conservative Supreme Court nominee onto the Supreme Court to support himself. He's trying to get the Supreme Court justices to decide the election, which is completely unconstitutional.

score -4 · Answer 19 · answered Sep 28 '20 at 11:47

-4

It's important to note that Republicans did not "set a precedent" in 2016; they simply followed the existing precedent.

Statistically speaking, you'd expect approximately 1 in 4 Supreme Court Justice deaths to occur during an election year, so it would be very strange indeed if 2016 were the first time this had ever happened! In fact, it's happened 29 times in the history of the USA. For over a century, a very clear precedent has been followed in such cases: when the Presidency and the Senate majority belong to the same party, the President's election-year nominee gets confirmed, and when they don't, the Senate waits until the next term to confirm a new nominee.

The only kinda-sorta exception has been in 1968, when President Johnson nominated Abe Fortas -- a sitting Justice at the time -- to fill the role of Chief Justice, which was technically not open yet; there was an understanding that Chief Justice Earl Warren was planning to retire as soon as a successor for him was confirmed, but until that time he remained active as Chief Justice. The Senate was controlled by the same party as the President, but there were enough people of both parties who had ethical concerns about Fortas that his nomination was filibustered and failed to achieve cloture. Given the unique circumstances, it's not clear whether this should even be counted as an exception to the precedent.

Mitch McConnell made reference to this long-standing precedent at a press conference in 2016 speaking of the plans to fill the seat left open by Justice Scalia's death. He noted that this was the same view held by Joe Biden the last time this had happened, in 1992 after the resignation of Justice Thurgood Marshall.

That the media's criticism highlights an "inconsistency" that does not exist, consistently pretends that 2016 was the only precedent when in fact Republicans' conduct in both the 2016 and 2020 nominations are fully in line with the existing precedent that's held true since before any of us or our parents were alive, and also fails to point out Democrats both changing their position and attempting to ignore the precedent both times, can honestly only be ascribed to media bias. Whatever one may think of the parties or the candidates involved, the facts of the matter are quite clear, and no explanation but bias explains the media's open disregard for those facts.

answered Sep 28 '20 at 11:47

Mason Wheeler

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The inconsistency does exist. "Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court. It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia." Those are MM's words. They all apply equally today. – Jontia Sep 28 '20 at 11:57
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All these answers that "it's not hypocrisy" or "it's media bias" border on gas lighting. Go check the record. https://www.cbsnews.com/news/mitch-mcconnell-supreme-court-vacancy-election-year-senate/ – Jontia Sep 28 '20 at 11:58
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@jonita Check the link I posted for McConnell's actual, un-edited words. That CBS News link is about as gaslight-y as it gets; not once does it include the proper context. What he said was, "that certainly is supported by precedent. You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year." But no mainstream media outlet is reporting that. Why? As I said, bias is the only answer that fits the facts. – Mason Wheeler Sep 28 '20 at 14:20
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@jonita *Once again,* check the link I posted to McConnell talking about it on C-Span. The source has been right there, in my answer, from the very beginning. It's not McConnell who conveniently left the context out of his statement; it's the media that conveniently edited it out in their reporting. – Mason Wheeler Sep 28 '20 at 14:40
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You should include the quote in the answer. It still doesn't change the fact that both he and the head of judiciary committee continued to say "the nomination should be made by the president the people elect in the election that's underway right now. " "It's about the principle -- the principle being that it's up to the American people in this next election no matter who they choose to make the nomination for this important seat on the Supreme Court." There is no "unless they control both senate and presidency" in there. Apparently it's about the principal of election being underway. – Jontia Sep 28 '20 at 14:45
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Fact checking: Out of 106 Supreme Court justices who are no longer serving, I count 16 whose tenure ended during an election year. Of those 16, 5 happened when the Presidency and the Senate were controlled by different parties. Of those 5, 3 were not replaced before the elections (1828, 1852, and 2016); while 2 were replaced before the elections (1888 and 1956). If you know of an election year appointment blocked by an opposing party Senate between 1861-2015, please identify it because I didn't find it. – krubo Sep 28 '20 at 18:28
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In an expansion to @krubo’s comment, I did similar research on a previous question. My cutoff was 15 months prior to election which may have led to more cases being included. Your claim about the Senate not confirming a nominee of a president of the other party is false: both in 1956 and 1976 president and Senate majority were of different parties yet the nominee was confirmed. Also, at the time 67 Senators were needed to end a filibuster; the Democrats only had 63. – Jan Sep 29 '20 at 07:59
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Include the quote bro (and a time stamp). I don't have 15m to listen to some pol blabbering. – Oct 01 '20 at 17:37

Why are Republicans (unlike Democrats) heavily criticized for their flip-flopping regarding the 2016/2020 US supreme court justice nominations?

19 Answers19

They chose to portray this as a matter of principle.

So it doesn't matter what the Democrats say.

The timing reinforces the case for waiting

Neither side is being hypocritical, because anyone assuming that the senate works from principles as opposed to party tribalism is naive.

Mainstream media bias, plain and simple.

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