Hostage Politics

J. V. L. writes:

If Trump and Senate Republicans are defeated in the election, but then try to replace Ginsburg before leaving office, the political retribution would be incalculable. The Democratic party would believe — with good reason — that there are no limits to majoritarian rule.

Meanwhile there’s a lot of this going around on among the left on social media:

These are similar mindsets (not that Last is endorsing the retribution he’s predicting).

To what degree should our government be guided by this sort of hostage game?

There are a few complexities in this situation, but the following points seem to be pretty simple:

1. Republicans were either operating within their political rights to withhold a vote on Garland or they weren’t. I don’t have an opinion here.
2. If Republicans were operating within their rights to withhold a vote on Garland, that doesn’t mean they aren’t within their political rights to vote on a nominee now, if there is one.
3. If Republicans weren’t within their political rights to withhold a vote on Garland, then it’s hard to see how they have a duty to withhold a vote on any nominee now. The fact is, lots of liberals accusing McConnell of hypocrisy right now are themselves implicated in their own charge.
4. The excuses Republicans gave about why they were withholding a vote on Garland were bad. The president can act within his given powers up until the point he is no longer president. And the senators can act within their own limits for as long as they are in office. No one is under obligation to stop doing their job just because their term of service is nearing an end.
5. Given points 1 — 4, there is no problem with Trump nominating a justice now and the senate holding a vote now. The problem was in 2016 with Garland.
6. The idea that the Garland problem should control the Ginsburg problem is mainly the same political gamesmanship that gave us the Garland problem. No one really believes that NOW we’ll be testing the willingness of Republicans to play fair, because everyone knows that the excuses in 2016 were mainly a rhetorical jab at Schumer and the dethroned senate Democrats. Further, no one on either side of the isle has believed the other side to be making good faith arguments or efforts for a long time.
7. If Democrats decide to “burn it all down” then they’re responsible for their actions. Sure, Republicans will be acting hypocritically with what they said in 2016, but everyone already believed that. The straw that breaks the camel’s back shouldn’t be an action that Democrats supported in 2016 (the nomination and voting confirmation of a justice). That is their own hypocrisy.