In his account of why people, and nations, lie about their conduct in war, the political philosopher Michael Walzer observed: “Wherever we find hypocrisy, we also find moral knowledge.” The hypocrite appreciates as well as anyone that there is “a way of talking about wars and battles that the rest of us appreciate as morally appropriate.”
As in war, so too in politics. Tomorrow marks the start of Judge Amy Coney Barrett’s confirmation hearing before the Senate Judiciary Committee, and the coming fulfillment of the promise Senate Majority Leader Mitch McConnell made within hours of Justice Ruth Bader Ginsburg’s death, 47 days before the presidential election. McConnell vowed that President Donald Trump’s replacement nominee would get a vote on the Senate floor—and also took care to insist that this was totally consistent with his refusal to allow President Barack Obama to fill the vacancy created by Justice Antonin Scalia’s unexpected death almost nine months before the 2016 election. Although “since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell claimed, no such tradition existed when the Senate and the president were of the same party. Days later, Senator Mitt Romney ended all speculation that conscientious Republicans would stop the party from moving forward when he released a written statement that adopted McConnell’s reasoning: “The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”
Critics quickly rejected this revisionist account as factually inaccurate—as explained by Russell Wheeler of the Brookings Institution, eight of nine election-year vacancies in the post–Civil War period were filled in the same year, including the most recent divided-government vacancy filled by Justice Anthony Kennedy by a unanimous 97–0 vote. (The ninth was filled through Republican President Dwight D. Eisenhower’s uncontested recess appointment of Justice William Brennan, who was confirmed by a Democrat-controlled Senate the following year.) And Senate Republicans’ ad-lib is at odds with the party’s own stated justification in 2016 for declining to give Judge Merrick Garland a hearing, which was that, when a vacancy occurs close to an election, “the American people should have a voice in the selection of their next Supreme Court Justice.” But there is a more fundamental problem with the Senate Republicans’ invocation of precedent (the word appears three times in Romney’s brief statement) to construct a morally appropriate story for their hypocrisy. It is their disregard for what precedent means and why it even matters.