U.S. Sen. Steve Daines opposed considering President Barack Obama’s Supreme Court nominee in the “hyper-politicized environment” eight months before the 2016 presidential election. But now he favors reviewing President Donald Trump’s replacement for Supreme Court Justice Ruth Bader Ginsburg while voters have already started casting ballots in the 2020 election.
Republican Daines said “clear differences” exist between 2016 and 2020 to justify the change, according to Daines' spokeswoman Katie Schoettler. Obama was a lame-duck president barred by term limits from seeking re-election. He faced a Republican-controlled Senate where Majority Leader Sen. Mitch McConnell, R-Kentucky, declined to set a hearing to consider the nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to replace Supreme Court Justice Antonin Scalia.
This time, Trump is on the ballot for a second term, and McConnell on Friday said a replacement for Ginsburg would receive not only a hearing but a vote on the Senate floor. There are just over 40 days before the 2020 election, followed by a two-month lame-duck session of Congress when many sitting members may have lost their seats.
“Senator Daines believes it’s critical the Senate confirms a Trump nominee that will defend the Montana way of life,” Schoettler emailed on Monday. That was defined as “self reliance, less government, outdoor heritage, and second amendment rights (and) If (Democratic Presidential nominee) Joe Biden is elected, he will nominate a liberal activist who will threaten the Montana way of life.”
Gov. Steve Bullock, the Democratic nominee challenging Daines, said Ginsburg’s replacement should not take place until after Inauguration Day.
“Four years ago, Senator Daines said ‘let the people speak,’” Bullock said on Saturday. “Montanans should be able to count on their senator to keep his word.”
Bullock backed up his comment with a clip of a February 2016 televised interview where Daines said, “Given the people have started to vote already, to put a nominee in the middle of that kind of very hyper-politicized environment, I do not think is right for the institution. And frankly, let the people speak, and we’ll move forward in January of 2017.”
"Governor Bullock is deeply concerned about the politicization of the Supreme Court and believes a nomination hearing six weeks out from Election Day would worsen the problem,” Bullock spokesman Sean Manning said on Monday. “The immediate way to prevent further politicization is for the Senate to follow the precedent set by Senators Daines and McConnell in 2016 and wait until after the inauguration to fill the seat.”
Democratic Sen. Jon Tester in 2016 criticized Republicans for “dereliction of their constitutional responsibility,” citing the Constitution’s Article II, Section 2, "(The President) … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court."
Last weekend, Tester stated, “There isn’t a separate set of rules for Republicans and Democrats — we should follow the precedent McConnell set and fill this vacancy when the next president and Senate are sworn in, regardless of who wins.” Spokeswoman Sarah Feldman said the governing principle for Tester was to follow the rules and precedents, not change them for convenience or power.
Republican President Ronald Reagan appointed Scalia, who was known for what legal scholars called “originalist/texturalist” rulings that consider the Constitution’s founding writers and theories the main source of interpreting present law. Ginsburg was appointed by Democratic President Bill Clinton, and was known for expanding civil rights and preserving the separation of church and state. Despite their judicial opposition, Ginsburg and Scalia were known for sharing a warm personal friendship.
Scalia was appointed in 1986 and died on Feb. 13, 2016. Ginsburg served since 1993 and died on Friday.
The Supreme Court debate has both short-term and future implications. Democratic leaders have accused Republicans of contorting their 2016 stalling tactic into a 2020 power grab at a moment when Congress must find agreement on economic relief in the COVID-19 pandemic and a year-end spending resolution, among other pressing matters. On Monday, stock markets fell on news that the Ginsburg replacement debate might push economic relief efforts past the Nov. 3 election.
The Supreme Court has a scheduled Nov. 10 hearing on the future of the Affordable Care Act, which to date has been preserved by a bare five-member majority. Some senators contend a full court should be empaneled by Election Day in case voting disputes need to be resolved as happened in 2000 with Bush v. Gore (although that concern was not raised in 2016 despite Scalia’s loss leaving an eight-member bench).
In the bigger picture, University of Montana law professor Anthony Johnstone said choosing a Supreme Court justice leaves marks on all three branches of government.
“In a world where the office of the president is as powerful as it’s ever been, both the Court and the Senate understand their power is tied in large part to their prestige with the American people,” Johnstone said on Monday. “Too much of American government happens between the lines, not controlled by particular opinions or legislation. You only have to look at the past few years of the Trump presidency to see neither the Court nor Congress is as powerful in the policy sphere as the president.”
That has special meaning in Montana’s senatorial race. Although Texas has 30 times as many residents, Montana’s two senators have equal voice when picking the next justice.
“Senate power tilts disproportionately toward rural states,” Johnstone said. “So Montana will fight above its weight in all Senate matters, including Supreme Court nominations.”
And those picks get lifetime appointments. In the 1930s, President Franklin Roosevelt clashed repeatedly with a Supreme Court made up largely by past presidents whose conservative attitudes rejected his economic stimulus efforts during the Great Depression. FDR threatened to “pack the court” by enlarging its number to tip the balance more in his favor. Johnstone recalled “the switch in time that saved nine,” where one justice broke from the anti-FDR majority, defusing the threat but also realigning the Court closer to then-current political trends.
“The Supreme Court presents senators with an opportunity to put their stamp on American governance long after their own careers are gone and the fleeting electoral majorities they enjoy have passed,” Johnstone said. “The majority of justices often represent the choices of presidents who were elected a long time ago.”
Axios reported Bullock was open to finding ways to “depoliticize the Supreme Court, including expanding the court.”
Some of the debate revolves around what rules or principles govern such rare events as a Supreme Court justice’s unexpected death and replacement.
“McConnell and his allies made up a rule that the Senate can’t vote on a SCOTUS nominee eight months before an election,” Tester spokeswoman Feldman said in an email on Monday, using the acronym for Supreme Court of the United States. “But now they intend to break it by ramming one through less than 45 days from election day.”
UM journalism professor and political analyst Lee Banville said that points up the vague nature of American government. Much of Congress’ and most of the Supreme Court’s decisions depend on precedent, which simply means doing what we did before because that’s the way we did it.
“Was 2016 the rule, or an anomaly?” Banville wondered. “Will it become the rule, or will it become ‘Merrick Garland is the only person ever affected by one political party and one branch of government?’ The rules can change every time, which is not good, but how far out do we go to establish precedent? Is one calendar year enough? Precedent is what we say it is until it’s settled and concrete. This one hasn’t been tested, kicked around and discussed, so we’re having the same fight we had with the (presidential) parties switched. It feels like every day is some kind of political reckoning in this country.”