For God’s sake Mitch, we should listen to Schumer and admit it’s a lot of tactical posturing as you yourself have recently said in an interview with the Washington Examiner where you justified your tactics on Garland’s nomination:

I said I … think the president’s going to send up a well-qualified liberal, you know he’s going to do that. I don’t think we ought to have hearings, or act on it because if the point is, who ought to make the nomination, then the issue of the nominee is irrelevant. And of course subsequently the president did send up a well-qualified person who would have moved the court to the left. But it wasn’t about Merrick Garland it was about who ought to make the appointment.

Sorry, of course it was about Merrick Garland who would indeed have moved the court to the left. The upcoming presidential elections was the perfect excuse to hold off and delay and hope that Hillary wouldn’t be elected president; that somehow Trump would win. A hope that grew stronger when later that summer of 2016 Trump issued his list of conservative judges he would consider in order to fill Scalia’s seat.

No one could accuse with any reasonable justification that the judges in that list were not well-qualified jurists. That’s. Not. The. Point. Who anymore possibly believes in a neutral, wise Leviathan-like judiciary? Let’s agree it’s hypocritical to not delay a vote on Kennedy’s replacement, but it’s a justifiable tactic that Democrats would have used and will use at some point in the future.

There may be exceptions and surprises in a Justice’s rulings. There almost always are. But please don’t tell me that it was impossible to predict the difference between Merrick Garland as the latest Justice, compared to a conservative like Gorsuch.

So, McConnell’s shtick about who should get to indirectly advise and consent – the voters who elect enough Senators in any given election to perhaps tip the balance in the Senate towards or against conservative or liberal or someday God forbid, rabidly progressive Justices – being more important than the nominee is nonsense, and the Majority Leader knows it.

But it’s also almost certainly the Senate’s biggest responsibility and leverage, advising and especially consenting to a President’s nomination for Justice of the Supreme Court. So, in honor of the upper chamber’s recondite and labyrinth-like rules, a little tic tac toe on the part of the Majority Leader is hardly surprising. But is it truly necessary? To pretend that this is about searching for the best Justice when nowadays almost any nominee is highly regarded, capable, and experienced?

Here’s another former senator, the late Charles Mathias who represented Maryland from 1969 to 1987, in an essay back a few years ago:

An independent judiciary demands that the nominee present no platform, expound no particular ideology, represent no constituency, and submit to no political litmus test. It also demands that those who nominate and appoint judges do not seek simply to affirm and perpetuate their political viewpoint in their nominations and appointments. A judge must take his seat on the bench confident that he is not expected to decide cases in any particular way because of the views of the leaders of either of the other two branches. Instead, he must emerge from the nomination process knowing that the president and Senate have confidence that he will preside with only one unalterable loyalty, to the Constitution, and with only one purpose, to assure the individual standing before him a judgment based upon the law of the land.

Do you believe that? In a political climate where to claim loyalty to the constitution is itself seen as a radical right-wing position? And if, like most people nowadays, you don’t believe Senator Mathias’ words, is that an argument for an even more independent judiciary? Or an argument for leaving aside the competence – unless a nominee is somehow truly second rate, intellectually and in terms of experience – and being honest about the partisan brawl that any Supreme Court nominee provokes in the Senate?

Alexander Hamilton split the nomination of Supreme Court Justices between the President’s power of nomination and the Senate’s advice and (especially) consent. Given the power of the judiciary over details of our lives like wedding cakes and trans students right to opposite sex bathrooms – perhaps the founders indeed could have imagined such things, but we will never know of course – Senator Mathias’ words seem quaint, or hypocritical.

But interestingly Mathias himself in his essay refers to Scalia’s unanimous approval at the hands of the Senate, despite – as Mathias seems to hint – Scalia’s ideological positions. Scalia’s intellect, capacity and character meant there was no way Senators could not consent to his appointment to the Supreme Court. Is something like that still possible?

It seems the Senate merely pays lip service to those qualities and then uses the process of advice and consent as a political stage, a media-frenzy theatre, to undercut or build up the nominee’s image, all because of strictly partisan reasons. Sticking with Maryland, imagine if the nominee is Brett Kavanaugh, a former Kenneth Starr aide and apparent protégé. Does anyone think that Senators like Schumer will question his competence? Or instead attack his record and his philosophy? The D.C. district judge, raised in Bethesda, clerked for Kennedy before also working for then Solicitor General Kenneth Starr on the Whitewater investigation.

His bona fides are impeccable. But that’s not the point of Senate consent in today’s world. It’s how Kavanaugh would vote on overturning Roe v Wade, for example. We’re in a cultural war. Should Supreme Court nominations be exempt? That’s not an easy question to answer. But it has to be asked at least.

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