Partisanship is hurting how our nation is run — and how our justices are selected

Partisan politics, growing in Washington for three decades, is starkly revealed in the advice and consent process of the U.S. Senate in presidential nominations to the Supreme Court.

Lately S.C. General Assembly budget-making has bogged down in unusual partisanship, likely because 2020 is a presidential election year — not to mention the continuing coronavirus and economic crises.

Partisan politics is upsetting or satisfying depending on which side of the political divide one stands — or how much attention one is paying. Too many people are so completely turned off that they no longer vote.

Partisanship reigns

That’s one of the distressing results of partisanship gone amuck, but it did not start with Senate Majority Leader Mitch McConnell. Partisanship increasingly has dominated politics — the engine of governance — since the 1990s when then-House Speaker Newt Gingrich infamously shut down the federal government.

One of the zealously partisan senators is South Carolina’s own Sen. Lindsey Graham, who used to be bipartisan on some issues. In 2016, months before Donald Trump’s election, Graham said: “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 that might be, make that nomination.”

By McConnell’s decree, the Republican-controlled Senate would not consider an appointment by President Barack Obama, a Democrat, to fill the vacancy left by the death of Supreme Court Justice Antonin Scalia in February 2016.

Obama nominated Merrick Garland but the Senate took no action in that election year; after winning the election Trump nominated and the Senate confirmed Neil Gorsuch to the bench in April 2017.

Now, shortly after the recent death of Justice Ruth Bader Ginsburg, Trump has already announced plans to name a woman to fill the vacancy.

And McConnell — with nearly the full backing of Republican senators — has already said the Senate Judiciary Committee, which is chaired by Graham, will hold hearings that could lead to a full Senate confirmation vote by Election Day.

Unfair? Not really

Democrats and others who do not want another conservative justice are outraged.

“Such hypocrisy!” they say.

“How unfair!” they declare.

Not really when you consider the history.

While it may appear hypocritical, there are these facts:

In 2016, Republicans controlled the Senate; the president was a Democrat.

In 2020, both the Senate and the presidency are held by the Republicans.

Before McConnell in 2016 introduced that election year as the reason for not acting on a president’s nomination, there were no similar situations in more than a century. On several occasions nominations and Senate confirmations happened when a president and Senate majority were of the same party.

Lame-duck presidents Ronald Reagan in 1988 and Lyndon Johnson in 1968 ran into confirmation problems but there were unusual circumstances.

A Democrat-controlled Senate confirmed Reagan nominee Anthony Kennedy in February 1988 after two mishaps with previous nominees Robert Bork and Douglas Ginsburg.

Meanwhile, Johnson’s nomination of Abe Fortas to become chief justice was even more complicated; eventually it became the only nomination not approved by a Senate controlled by the same party as the president.

A huge impact

The election year reasoning suits McConnell’s goal of having more conservative justices on the Supreme Court and throughout the federal appellate and district courts.

Millions of Americans, not necessarily a majority, will be OK with that.

The appointments will have an impact on justice for decades.

One recent poll found that most Americans prefer to let the next president name a new justice.

Indeed that’s what Graham said in 2016.

But partisanship will not allow it to happen in 2020.

This story was originally published September 25, 2020 at 5:43 AM.