Why There's Nothing Unprecedented about what the Republicans (or Democrats) are Doing

Joseph Backholm is Senior Fellow for Biblical Worldview and Strategic Engagement at Family Research Council. This article appeared on Townhall.com on September 27, 2020.

President Trump’s nomination of Amy Coney Barrett to the Supreme Court not only ads another wrinkle into an already unusual election cycle, but renews the debate over the appropriateness of the deliberation. Lindsey Graham was against confirming Supreme Court nominees before an election before he was for it. On the other hand, Joe Biden, Chuck Schumer, Barack Obama were in favor of it before they were against it.

Still, despite the attempts to appear outraged, no one should be surprised that this is happening the way it is. Though the timing of Ginsburg’s death is fitting for the chaos of 2020, the response by the respective parties is completely predictable. Yes, Republicans and Democrats alike are taking different positions now than they did in 2016. The reason the Republicans and Democrats are taking a different position is because the positions they took in 2016 do not serve their interests in 2020. It really is that simple.

More remarkable is the seemingly providential way in which people on the Supreme Court die at times that benefit President Trump.

More than a quarter of Trump voters surveyed in 2016 said that the Supreme Court was the “most important factor” in casting their votes. Only 18 percent of Hillary Clinton voters said the same. Without Antonin Scalia’s death in early 2016, Trump likely would not have been elected. Evangelicals were highly skeptical of the man but supported him in the hope that he would nominate someone to the Supreme Court who would be better than Hillary’s choice. And he did. Could it be that the death of Ruth Bader Ginsburg four years later will be the catalyst to his reelection as he again galvanizes the same base around another Supreme Court vacancy? That seems possible.

While the timing of death is a mystery, the motivations of politicians really are not. Politicians use their power to advance their interests. This is the most precedented thing there is in politics. The difference between 2016 and 2020 is that the president in 2016 did not have the political support to confirm his nominee. In 2020, the president does. Elections matter.

If the roles were reversed, Republicans would be crying bloody murder about the hypocrisy of the Democrats and Democrats would be calmly explaining the importance of not going into this election with a tie on the Supreme Court. Still, in many ways, the protest is a show. Even though they say “you can’t do that,” what they really mean is “I don't want you to do that" and they know it. The only real rule is the Constitution. Everything else is opinion, preference, or protocol.

If the Constitution says you can, then you can. In this case, the Constitution says you can.

The real tragedy here is not that politicians are doing political things but that the Supreme Court has become such a high stakes game. We are, in many ways, ruled by an oligarchy of nine that creates policy, invents rights, and takes away rights without any accountability to the public. The president's most important job, it seems, is to appoint members of the oligarchy.

This is not how it was intended to be and is not how it should be. But it is how it is. Now, the ones who invented this game are the ones who are most bothered by the way the game is going. I hate it too.

I would be happy to go back to a world where elected officials are the most important policymakers in the country, but since the left has advanced virtually all their preferred policies (redefining marriage, redefining gender, inventing the right to abortion) through courts rather than Congress, they have created a nation full of people who care a lot about what happens on the court.

There is simply too much at stake to turn down an opportunity to select eleven percent of an oligarchy. Republicans know this, which is why they’re going to do it. Democrats know this too, which is why the situation makes them so angry. Frustration is understandable but indignation is unreasonable. Everyone is simply doing what they've always done. It just so happens that it’s more painful to lose when you thought you were about to win.