Republicans Invent New Supreme Court Tradition Out of Thin Air

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Republicans are pretty unanimously refusing to consider confirming a Supreme Court nominee to replace Antonin Scalia before the election. That’s hardly unexpected, but what cracks me up is their effort to make this sound like a principled stand. “It’s been over 80 years since a lame duck president has appointed a Supreme Court justice,” Marco Rubio said last night, apparently not understanding what “lame duck” means. “We have 80 years of precedent of not confirming Supreme Court justices in an election year,” Ted Cruz agreed, apparently not realizing that Anthony Kennedy was confirmed in 1988. No matter. “It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” thundered Chuck Grassley, the chairman of the Senate Judiciary committee, which will hold hearings on Obama’s nominee.

This has quickly become a meme on the right. It’s a deeply held American tradition not to confirm Supreme Court justices during an election year. Needless to say, this is ridiculous. Anthony Kennedy aside, the reason Supreme Court nominees haven’t been confirmed during election years for the last few decades is just coincidental: none of them happened to have died or retired during an election year.1Some tradition. Perhaps Scalia should be posthumously censured for having the gall to break this custom.

In any case, congratulations as usual to Mitch McConnell for not bothering with this self-righteous pretense. He says the Senate won’t vote on a replacement for Scalia because, basically, they just don’t want to. “The American people should have a voice in the selection of their next Supreme Court justice,” he said yesterday, and that’s that. Republicans have the power to delay in hopes of electing a Republican in November, and that’s what they’re going to do.

1Abe Fortas was rejected during the 1968 election year, but this had nothing to do with any kind of hallowed tradition. It was because Republicans and Dixiecrats were pissed off at the Warren Court, and preventing LBJ from elevating Fortas to chief justice was a way of showing it. They were able to use an ethics scandal to gin up opposition, and Fortas never even made it to a floor vote.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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