Hypocrisy and constitutional etiquette

Many conservatives, lacking the conservative virtue of prudence, belabor the obvious with a sense of intellectual achievement: They say Barack Obama had the power to nominate Merrick Garland to replace Scalia, and the Senate had the power to deny him an up-or-down vote, so nothing more need be said.

Indeed, nothing more — if there is nothing more to constitutional etiquette than this cold logic of formal powers. The logic is as clear as it is obtuse when offered as a sufficient justification for not voting on an accomplished moderate jurist nominated 237 days before the 2016 election. But the nation’s often ferocious political competition, although framed by the Constitution, should be lubricated by prudence, whereby ferocity is tempered by a statesmanlike refusal to exercise every power the Constitution grants.

Sixteen Republicans who were in the Senate in 2016 and who are seeking reelection this year said (Susan Collins did not say this) that refusing to confirm a new justice during a presidential election year was high statesmanship. How many will have the effrontery to vote for someone nominated while presidential voting is underway, or after the election even if the nominator loses?

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