All presidential elections are consequential. But some are far more consequential than others. For example, the consequences of FDR’s 1932 election during the depths of the Great Depression went far beyond years 1932-1936. FDR ushered in the New Deal with lasting, significant programs including Social Security and banking reforms. He effectively led the nation through World War II and set the stage for U.S. postwar world leadership.
The election of 2016 is arguably the most consequential since 1932. That’s because unwritten norms on which our democracy depends have been ignored and democratic institutions upon which checks and balances depend have been challenged as never before in recent history. And it’s because as presidents and congressmen come and go, appointments to the federal court system are for life.
Trump has already appointed a record number of federal judges and two Supreme Court justices. With the death of RBG, he will likely appoint a third. Appointing one third of the U.S. Supreme Court that will decisively influence the nation’s direction on controversial issues for generations is indeed consequential.
In other words, voters who voted for Trump, or stayed home because they were “uninspired by Hillary,” are responsible for the most consequential election since 1932.
The appointment of conservative Neal Gorsuch in 2017 came about because with the death of Justice Scalia in 2016, Senate Majority Leader McConnell refused to hold hearings on Obama’s nominee, a centrist judge, Merrick Garland. Although this seat was literally stolen from Obama, the replacement of conservative Scalia with another conservative, Gorsuch, did not change the tilt of the court.
The unexpected resignation of conservative Justice Kennedy in 2018 gave Trump another opening, to which he nominated, and the Senate confirmed, Justice Kavanaugh. As Conservative Justice Kennedy was seen as a possible swing vote, occasionally siding with the four liberals, his replacement by the conservative Kavanaugh gave the Court a more reliable conservative majority. Even though in a couple of cases Chief Justice Roberts unexpectedly voted with the four liberals, it would be unrealistic for liberals to rely on the conservative Roberts as a “swing voter.”
During the 2016 election, Trump pounded home the importance of judicial appointments. Conservatives were quick to grasp the importance of the Court regarding guns and women’s’ reproductive rights — or lack of them. In stark contrast, the Clinton campaign and high-level Democrats totally neglected to make the Court an issue.
Upon stacking the federal court system, including naming two Supreme Court justices, Democrats finally began to vocalize court appointments as a reason to vote Democratic. In contrast to the Gorsuch and Kavanaugh appointments that replaced two conservatives with two conservatives, replacing liberal RBG with a conservative drastically changes the court for decades to come. Democrats could only hope that RBG, with her frail health, could last until possibly a Democrat could win in 2020. Her death on Sept. 18th ended those hopes.
Justice Ginsberg is already hailed as a great justice of historical significance, a hero in ruling for rights of the unrepresented. Among her last words were, “My most fervent wish is that I not be replaced until a new president is installed.”
McConnell’s justification for withholding Obama’s nominee for nearly a year in 2016 was that it was an election year, and “the voters should have a chance to weigh in.”
In 2020, the election is already in progress. But McConnell’s precedent established in 2016 is out the window. His new rationale is “It’s different this time,” because the same Party now holds the presidency and the Senate. That’s flimsy logic. If the rationale in 2016 was “to let the voters weigh in,” and let the next president make the nomination, that same logic has even more relevance in 2020 as the election is already under way.
The real difference is that in 2016 Republicans benefitted from holding up the nomination; in 2020, Republicans benefit from ramming it through.
It’s about power. Today, they site the Constitution. In 2016, they said it “didn’t apply” to that situation. Senate Republicans have proven themselves adept at moving the goal posts when it’s to their advantage.
In 2016, Senator Graham favored delaying Obama’s nominee. In a phony display of “fairness,” he promised that if a Republican president nominated a justice in an election year, he would vote to delay. With an invitation to “use those words against him,” he reiterated that promise in 2018.
It’s easy to make promises for a hypothetical situation that may not occur. Now chairing the Senate Judicial Committee, Graham, has already broken that promise, coming up with manufactured “reasons” for his duplicity. But then, with his conversion from calling Trump a “con man” to becoming one of his prominent sycophants, Graham has long ago shot any credibility he may once have had.
Senator Grassley, former Chair of the Senate Judicial Committee, made the same promise, to delay a Republican nominee in an election year. Grassley and several other senators who in 2016 justified delay, promising that they would do the same should that situation arise again, have broken their word.
Graham and others in tough Senate races seem not to worry about being hypocritical. North Carolina’s Senator Tillis in 2016 said, “We’re not going to nominate a Supreme Court Justice until the people have spoken.” He added, “We’re going to let the American people speak.” In 2020, he obviously doesn’t want to hear how the American people might speak. He vows to support Trump’s nominee.
Colorado’s Gardner in 2016 said that “the next president ought to choose.” In 2020 he faces the choice of being a hypocrite and obeying Trump’s command, or showing some integrity and angering Trump and his Conservatives. Gardner painted himself into that corner.
Maine’s Collins, in deep trouble and hoping to skate by, holds that the Senate should not vote until after the election. McConnell, attempting to maintain the Senate majority, can afford give Collins and two others a “bye,” and still ram Trump’s nominee through.
The 2020 election looks to be even more consequential than that of 2016.
— John Waelti of Monroe, a retired professor of economics, can be reached at jjwaelti1@tds.net. His column appears Saturdays in the Monroe Times.
