If I were a senator today
If I were a senator in September 2020, what would I do?
That is: Would I cast a vote to confirm the president’s nominee for the Supreme Court? Or, would I pledge to wait until after the election?
Of course, as a senator, I don’t do my work in a vacuum.
An entire state with millions of people hired me to represent them in Congress. As their employee, I have to take into account what most of them want me to do in their name.
I also belong to a political party machine that supported my election and that I will need for my re-election.
Favors are the currency of politics. Who do I owe what? Will they call in their favors on this vote? Who owes me? Do I have enough “political capital” to go against my party leadership or the will of the people back home?
Finally, I have my own character and convictions, which must help me navigate the many difficult choices that all add up to the big one: Confirming a nominee or waiting until after the election.
With all of that in mind, here is what I would do if I were a senator now.
I would follow the process the Constitution put in place to confirm Supreme Court justices. I would stick to 200 years of Senate tradition. If the president nominated someone who had the credentials and track record of a worthy federal jurist, I would confirm. If not, I would delay or deny the confirmation. The president must do his job and the Senate must do its job according to the U.S. Constitution.
My job, as a senator, is to preserve and protect the integrity and practice of the U.S. Constitution. A political party and its agenda are neither broad nor strong enough as a foundation for future generations to keep the Republic. To put the short-term interest of party over the long-term health and prospects of the Republic–provided for in the Constitution–is to fail my oath of office. At the end of every decision I make as a senator, I must ask: “Does it ultimately build up or erode the Constitution? Does it preserve and protect the framework on which future generations can keep the Republic healthy and strong?”
It is on the basis of the Constitution that I can be both critical of Senate Majority Leader Mitch McConnell in 2016 and go along with him in 2020.
I would say: “Senator Majority Leader McConnell was wrong to not allow the Senate to do its job and put President Obama’s nominee through the confirmation process in 2016. At that time, the Senate had a Constitutional obligation and more than 200 years of Senate tradition to uphold. We had a highly qualified nominee in Merrick Garland who this very Senate confirmed to the federal bench in 1997. It was because Senate Majority Leader McConnell put the interests of his party above the Constitution that I am in favor of meeting those obligations today. We don’t have to like it, but we do have to stick with the Constitution. We need to let the Constitutional process do what the Framers designed it to do. If the president’s nominee is not worthy of the Supreme Court, it will become clear to everyone during the confirmation process. At the end of that process, I will either cast my vote to confirm or not confirm on the basis of the nominee’s qualifications and not on the basis of which party or president nominated her.”
If someone from among my constituents or my own party pushed back, I would say this:
“The Constitution, not party interests, has to be the deciding factor. If we follow the precedent of 2016, we are making party politics a more important factor than the Constitution. We are acting as if the Senate governs not one nation, but two, represented by two different political parties. In short, Senate Majority Leader McConnell’s decision in 2016 says that nominees only get Senate confirmation when the same political party controls both the Senate majority and the White House. This kind of factionalism is precisely what the Framers wanted to avoid and discourage when they wrote the Constitution. Not only that, but it encourages this kind of factionalism among the American people. It leads them to believe in an "all or nothing” partisan form of government that is the antithesis of a healthy republic. The only way to counteract Senator McConnell’s flagrant misuse of power in 2016 is to not repeat it in 2020. This is the only way to protect Constitutional norms. This is the only way for the free exchange of ideas and the peaceful transfer of power to exist for generations to come.“
The final factor in my decision would be the discouragement of pushing partisanship into the federal judiciary. The more partisan the confirmation process becomes for federal judges, the more pressure it puts on federal judges to be partisan. The federal judiciary has a long and strong tradition of being impartial and nonpartisan. Judges understand that they do not make the law; they interpret the law (and do so with as impartial a mind as they can muster). The health and strength of the Republic depends on a healthy and independent judiciary. Any partisan pressure on the judiciary would ultimately do harm to both parties and the Republic itself.
On that point, I would say: "I have faith that our federal judges are impartial and independent jurists. I have faith that our federal judges understand that their job on the bench is to interpret the law in light of the Constitution and generations of legal precedent. That means federal judges work apart and even against what partisans desire to gain from certain interpretations of the law. It is unlikely that any nominee, even from this president, who comes before this Senate would anything but the best of what the federal judiciary has to offer. I prefer to let the nominee’s qualifications for the job be what either elevates or prevents her from a place on the Supreme Court. To allow partisan agendas to become the deciding factor in confirming judges is to miss the point of the judicial system altogether. So, I believe the best course is to go through the confirmation process according to the U.S. Constitution.”
That’s what I would do if I were in the Senate now.
Would I have your vote when the time came for my re-election?