Begala: Should we let this duly-elected president fill Supreme Court openings?

Er …. sure? Admittedly, that isn’t quite how political strategist and former Bill Clinton adviser Paul Begala put the question on Twitter and how Jason Sattler put it in a USA Today column earlier today. Instead, Begala went more with an I’ve-never-read-the-Constitution motif:

Sattler, for his part, wants Democrats to go full obstructionist for the next four years and keep Trump from filling any seat on the Supreme Court:

Democrats in the chamber have the votes to hold up exactly one major appointment from President Trump without any Republican help. And they should fight Neil Gorsuch’s nomination to the Supreme Court with every vote they’ve got — even if it means ending the ability to filibuster any high court nominations in the future.

They have no other choice.

This is an appointment by the biggest popular vote loser of the modern era to fill a stolen seat. Pretending this is just Senate business as usual would pat the GOP on the head for pulling off the heist of the century, and it would give Trump a thumbs up for his first-week “shock and awe” campaign of executive orders designed to roll back immigration, the Affordable Care Act and voting rights.

It would also show that the elected left has learned nothing in the last eight years.

Actually, Sattler’s advice suggests that the Left hasn’t bothered to pay much attention for a lot longer than eight years. Both he and Begala argue that a “popular-vote loser” has less authority as president than a popular-vote winner, which is … nonsense. We have had the same Constitution for 238 years, and the presidency has never been determined by a national popular vote. Not once. As Yogi Berra used to say, you could look it up — and apparently some on the Left must need to do so.

As the duly elected winner of the Electoral College, President Donald Trump does indeed have the authority to appoint Supreme Court justices, regardless of whether Begala and Sattler like it or not. There is not a “presidency lite” with half the calories of a regular Commander in Chief. The Senate can choose to confirm or reject those nominees, and had Democrats won the majority in a cycle where they clearly had a numerical advantage, they could have done so. Instead, they lost, and now they want endless relitigation of the election rather than deal with reality.

Furthermore, both Begala and Sattler describe the Supreme Court seat as “stolen,” as though Senate Republicans had a positive duty to rubber-stamp Merrick Garland for confirmation simply because Barack Obama nominated him. Not only does that requirement not exist, Democrats argued in 1992 and again in 2005 that a refusal of the Senate to act on a nomination was entirely legitimate, and that appointing a Supreme Court justice in the final year of a presidency was illegitimate. That’s called “the Biden rule,” which Democrats threatened to apply to Republican incumbents in both cases, George Bush père et fils:

“If someone steps down, I would highly recommend the president not name someone, not send a name up,” Biden said. “If he {Bush} did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.”

“Can you imagine dropping a nominee, after the three or four or five decisions that are about to made by the Supreme Court, into that fight, into that cauldron in the middle of a presidential year?” Biden went on. “I believe there would be no bounds of propriety that would be honored by either side. . . . The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted.”

“Whomever the nominee was, good, bad or indifferent,” he added, “would become a victim.”

Biden returned to the same theme in 2005, joined by fellow Senate Democrat Robert Byrd:

Biden also discussed a number of supporting precedents:

  • “President Adams had a number of judicial nominations blocked from getting to the floor”;
  • “A number of President Monroe’s nominations never reached the floor by the end of his administration and were defeated by delay, in spite of his popularity and his party’s control of the Senate”;
  • Because of a filibuster, in 1881 “Stanley Matthews’ Supreme Court nomination failed without getting a vote”;
  • Because of a filibuster, President Johnson’s nomination of Abe Fortas “never got a vote, even though he was a sitting Supreme Court Justice about to be elevated to Chief Justice.”

Biden was not alone in endorsing Senator Byrd’s view of the Senate’s power to withhold its consent by doing nothing. Three weeks after Biden’s impassioned speech, Senator Harry Reid echoed the Byrd argument in a floor statement:

“The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”

This Supreme Court opening wasn’t “stolen” — it was a case of “sauce for the goose.” Democrats have a habit of creating and imposing “rules” that benefit themselves, only screech about the shock, shock of having to abide by the rules and policies that they created themselves. That has been especially true about confirmation of Trump’s Cabinet picks after Harry Reid set a precedent by wiping out the use of the filibuster for presidential appointments other than the Supreme Court. Having allowed Barack Obama to stack the 4th Circuit Court of Appeals with that stunt, Senate Democrats are now staging boycotts of Senate committee meetings in a vain attempt to reinstate the filibuster on these appointments by other means.

Republicans simply played by Democrats’ rules, and Democrats are furious about it. Perhaps in the future, they should refrain from unilaterally setting precedents and “rules,” but the only way to teach them a lesson is to make them pay for it — which is precisely what Republicans did last year. That way the lesson sticks.