Why are Republicans (unlike Democrats) heavily criticized for their flip-flopping regarding the 2016/2020 US supreme court justice nominations?

Question

It's hard to be on the Internet currently without encountering heavy criticism of prominent Republican politicians over Trump nominating a Supreme Court justice so close to the 2020 US election. As per my understanding, criticism primarily highlights inconsistency in the Republican-led blocking of Obama's 2016 Merrick Garland nomination but support for Trump's 2020 Amy Coney Barrett.

What I'm not seeing is the same thing for Democrats. I.e., presumably Democrats similarly supported Obama's 2016 nomination and oppose Trump's 2020 nomination, which seems symmetrically inconsistent. To make this concrete, searching for "supreme court hypocrisy" in Google News, we find many articles about Republican hypocrisy (1, 2, 3, 4, 5, 6, 7, 8, etc.), and the only article that mentions the Democrat's symmetric flip-flop is Fox News.

Question: Why are Republicans (unlike Democrats) heavily criticized for their flip-flopping regarding the 2016/2020 supreme court justice nominations?

Answer 1

The Democrats were in favour of appointing Garland in 2016, but now that the Republicans have set a precedent that Supreme Court Justices should not be appointed in an election year, the Republicans are being asked to stick to it. The Democrats are simply asking the Republicans to stick to the principles they used four years ago. The Republicans are the ones who changed the normal procedures in the first place, so they are the ones being called out for changing their mind again about how appointments in an election year should be handled. They have done two flip-flops, while the Democrats have just followed a step behind.

Answer 2

Why are the Republicans being criticized? Because in 2016 they didn't simply say it was party politics as the reason to oppose Obama's choice, nor even that they disagreed with his choice.

They chose to portray this as a matter of principle.

On principle, they declared that they believed a new Justice should not be appointed in an election year, because it would deny the people the ability to vote for someone who would appoint a Justice that the people approve of. That was the reason they gave in 2016. They said that it would be morally wrong to allow the appointment, and that they had a moral duty to oppose it.

So it doesn't matter what the Democrats say.

The Democrats could disband tomorrow, and it wouldn't matter. The Republicans declared a principle that they believed in 2016 should be established, and on principle they should follow it. In 2020, they have done precisely what they themselves declared in 2016 was morally wrong.

They're not being criticized for any party political business-as-usual. They're being criticized for failing to keep to principles they declared were important, which they've now broken. The charge against them is not a simple flip-flop, it's moral hypocrisy.

Answer 3

The main reason for this is down to one question: who won the argument in 2016?

Because the Republicans had a majority in the Senate in 2016, it was them who decided how Obama's nomination would be handled. The position of the Democrats would not have affected the outcome in any way.

Similarly, in 2020, as the Republicans have a majority in the Senate, they decide how Trump's nomination will be handled, and the position of Democrats is not expected to affect the outcome.

Because Republicans were in control in both instances in time, with very similar circumstances, many wonder why they aren't treating it in the same way.

Answer 4

which seems symmetrically inconsistent

No, they're not. The Republicans are asking that precedent established by them be disregarded because it benefits them. Democrats are asking that precedent be respected.

So it's not symmetric. There is a difference between arguing for A, then arguing for B, versus arguing for (A and B). Suppose your company offers you a company car, and you ask for an electric vehicle. They say "No, we're going to give you a gasoline-powered car". You say "Okay, let me have the keys so I can go to the gas station and put gas in it." They say "What's wrong with you? You shouldn't put gas in an electric car." You say "But you said you were giving me a gasoline car." They say, "Yeah, but you wanted your car to be electric, and you want to put gas in it. Since you want an electric car, and you want to put gas in your car, it follows that you want to put gas in an electric car." That's a silly argument, and it is similarly silly to argue "The Democrats didn't want to wait when they held the presidency, and they do want to wait now that they don't, so they are arguing that we shouldn't wait when they hold the presidency, but we should when they don't." The Republicans, on the other hand, are saying that we shouldn't wait when they hold the presidency, but we should when they don't. That's literally what Romney said. If you argue for A, and then once it's been determined that A is not going to occur, argue for B, that is not arguing for A and B. But if A does occur, then arguing for B is arguing for A and B.

It's perfectly reasonable to assert that always filling vacancies quickly is preferable to waiting until after the next election but always waiting until after the next election is preferable to sometimes waiting and sometimes not.

It's like lobbying for strict gun laws but owning a gun; it's not hypocritical to say that no one having a gun is preferable to everyone having a gun, but everyone having a gun is preferable to everyone except you having a gun. One can assert that making sure rules apply to everyone is more important than what those rules are. In fact, that's what the entire concept of "hypocrisy" refers to. By attacking Republicans' inconsistency, Democrats are implicitly asserting that consistency is a value in and of itself, apart from the actual positions that result.

Also, this vacancy is much closer to the election.

Answer 5

Others have answered about the hypocrisy angle, but I also see another difference this time.

In 2016, the Democrats knew that they would face opposition from the Republican Senate. So Obama deliberately chose a moderate candidate, Merrick Garland. He was clearly trying to offer the GOP a compromise by not nominating a far-left justice. But the Republicans didn't even give the candidate a hearing, let alone bring it to a vote. Had Mitch McConnell not been dead-set on blocking Obama's nomination, many expected that Garland would have sailed through the confirmation process.

On the other hand, with far less time until the election this year, Trump has nominated Amy Coney Barrett, an extremely far-right judge, and the Republicans are planning on rushing her confirmation to a vote. CNN wrote

Advocates on the far right have backed her possible nomination because of her writings on faith and the law. Religious conservatives were especially energized for Barrett when, during the 2017 confirmation hearing for her current judgeship, Democratic Sen. Dianne Feinstein of California suggested to her that the "dogma lives loudly within you."

The vote is most likely to pass, as only 2 Republican Senators have expressed objection to voting in an election year, and the Republicans used the "nuclear option" in 2017 to prevent filibustering Supreme Court confirmations.

It's like the Republicans are shoving it in the Democrat's faces that they have all the power and can do whatever they like to put forward their long-term agendas (overturning Roe vs. Wade, getting Obamacare declared unconstitutional, etc.).

Not only are Republicans going back on what they said in the past about this process, they're not even trying to offer anything to appease the Democrats. Why not? Because they don't need to.

And this is all on top of the total hypocrisy. Just two years ago, during the confirmation process of Brett Kavanaugh, Lindsey Graham went on the record, saying:

I'll tell you this – this may make you feel better, but I really don't care – if an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait until the next election.

One more point: On her deathbed, Justice Ginsberg reportedly told her granddaughter:

My most fervent wish is that I will not be replaced until a new president is installed.

She made a fervent wish for the Republicans not to flip-flop, yet they blatantly went ahead anyway, breaking promises and also disrespecting a great woman.

Answer 6

Suppose you and your friend had been playing a game many times for years. One day your friend decided to change the rules in the middle of a session in a way that was very advantageous to them. The next time the two of you played, the rule change would benefit you. So you suggested that you do the rule change again. But your friend was absolutely against it. Who is acting unreasonably? You or your friend?

Answer 7

The timing reinforces the case for waiting

In 2016 the gap in the Supreme Court opened in February. That meant that waiting for the election left the seat open for an extra half a year.

In 2020 the gap in the Supreme Court opened in September. In this case appointing a new justice before the election would require unusual haste, and delaying appointment until after the new president enters the office would only add a few months delay.

This means that "we should wait" is a stronger opinion than it was four years ago, and it's much easier to justify switching from "don't wait" to "wait" than it is the reverse.

Answer 8

Precedent

Republicans proposed a new rule and introduced it successfully. Now they want to get rid of the rule.

Democrats opposed the rule, yet the rule was established over their objections. Democrats don't even have to mention where they stand on confirming Supreme Court nominees in an election year. Instead they argue that Republicans should be bound by the precedent they created.

Magnitude

The rule the Republicans introduced was against nominations in an election year, specifically it was against filling a seat that became vacant on February 13 2016, 269 days before the election on November 8 2016, with a nomination that required 60% of the Senate votes to confirm.

The current seat became vacant in September 18 2020, 46 days before the election on November 3 2020, and Republicans have since changed the rules to only require 50% of the Senate votes to confirm.

The average number of days from nomination to final Senate vote since 1975 is 67 days.

There is no hypocrisy in arguing that 46 days and confirmation with 50% support is too close to the election while 269 and confirmation with 60% is not.

Credibility of the Supreme Court

Republicans, in an unprecedented move, have repeatedly indicated that they will not accept the results of the 2020 election and intend to challenge the results before the Supreme Court. Therefore a last minute appointment of a very partisan judge will harm the credibility of the Supreme Court even more than it would under more common circumstances.

Answer 9

If the Senate were able to perform their constitutionally mandated duty to "advise and consent" on Merrick Garland, that is, if there was a hearing and Republicans voted Garland down fair and square 49-51, that would have been as remarkable now as Robert Bork, Douglas Ginsberg, or Harriet Miers as a Supreme Court nominee who didn't make it through the nomination process. Interesting, to be sure, but the political process operating normally as everyone expects and delivering an outcome that is within the decision tree and has been seen before.

But that's not what happened, Mitch McConnell made up a new rule, breaking norms (and notably denying this vote from being on the record of incumbent senators). Notably the Democratic Obama administration did not also break norms by seating Garland as a recess appointment, an arguably legal but not normal path available at the time.

Now Republican senators have to defend their 2016 acquiescence in tandem with their 2020 acceptance of McConnell making procedural power plays unhinged from saying what happened in 2016 is a "new normal"

Answer 10

The other answers provide some reasons, but here is another one: because the Republicans have been demonstrating their partisanship for four years, and people do not judge political decisions in a vacuum.

The Democrats do not control the presidency and the Senate, and they are less partisan overall (asymmetrical polarization). Thus, during Trump's presidency the public has been treated to many examples of the Republican willingness to ignore laws, rules, and decency in the pursuit of self-interest. For instance, almost every Republican member of the Senate voting to acquit him of serious misconduct, Trump subjecting the country to a shutdown unless he received money for his fabled border wall, and of course Trump's statements about preventing his opponents from running or only conceding if the results are positive for him.

The nomination of Barrett is viewed through the lens of all these previous actions. They render it difficult for Republicans to plausibly make the same argument as Democrats, that their change of opinion is actually a matter of principle, because people recognize that principle has not been a major player in the Republican party in the last several years. Further, Trump is the one taking the action, which naturally causes people to focus on the Republican party. Thus, the Republican position here is viewed as a more serious manifestation of political inconsistency than if it had occurred in isolation, and the Democratic change of opinion attracts less attention and scrutiny than it otherwise would.

Answer 11

Notably Lindsay Graham said (which I posted as a now deleted comment)

"I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination,' " he said in 2016 shortly after the death of Justice Antonin Scalia. "And you could use my words against me and you'd be absolutely right".

_{Source: Npr "'Use My Words Against Me': Lindsey Graham's Shifting Position On Court Vacancies"}

Senator Lindsay Graham said this during the Obama administration and now is openly taking the exact opposite position. Its hard to come up with a more hypocritical position in much of political history, certainly many hypocrisies may be considered equal to that, but few exceed it.

So then the argument from conservatives becomes 'well, all politicians are hypocritical, its just how it works'. I would challenge that assumption, politicians in a democracy are as hypocritical as their voters allow them to be. If voters feel that someone is hypocritical or is constantly lying, there's no mandate that voters re-elect them. In fact the voters are likely better served by those who are closer to honesty than deception. At least then you know what you are actually voting for when you elect a leader.

If all leaders were expected to never engage in honesty, society would become more and more rife with corruption, inefficiency, and stagnation. Much as it is in Russia.

Answer 12

There are three main differences between the 2016 event and the 2020 event.

1. In 2016, there was not a famous, recent precedent.
2. In 2020, there is a month until the election. In 2016, there were nearly 9 months between nomination and election.
3. In 2016, the party that did not control the presidency argued on principle that the Senate should wait. In 2020, the party that did not control the presidency argued that we should do what we did just last time. Different arguments.

That is likely why the argument is so much more in favor of Democrats in the media—because analysis shows the two situations are different and in 2020 the Democrats have a legitimate, objective complaint (as opposed to an entirely partisan complaint).

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Disclaimer: I'm trying to be non-partisan in my answer. I don't believe one party is always right or has all the answers.

Answer 13

Neither side is being hypocritical, because anyone assuming that the senate works from principles as opposed to party tribalism is naive.

Both parties have been completely consistent, in that: they're going to vote with whatever helps their party out. The supposed reasons that are given are just post-hoc justifications (which pretty much just makes them liars.)

Even Lindsay Graham's quote. It was an idiotic decision, but it was a rhetorical tactic to try to make it seem like he had principles. "No, really, this is what I firmly believe down to my core, not just because it happens to benefit my party. Trust me. If this ever comes up the other way, I'd support the other side." I'm not sure anyone actually believed him back then - but hopefully it's clear now that... yeah, he wasn't actually articulating an actual principle. It was just a justification for the actual principle being held (party above all.) And it's not like 2020 and 2016 are our only data points - the politicians in question have been doing this for awhile: there was yet another flip-flop during Bush's appointments as well.

So, as to the actual question? Why are there so many callouts to Republican flip-flops, and not for Democrat ones? Because there have definitely been flops.

Sadly, it's the same thing: tribalism over principles.

In a way, it's been funny to see news outlets do the exact same thing as the politicians. Fox News? Back in 2016, it was all about "No, it's not precedent to do this"; in 2020, it's "Whoa, hey, look at these Dems that flip-flopped back in 2016!" CNN? Back in 2016, it was all about, "Look at these Repubs trying to obstruct!"; in 2020, it's "Man, Lindsay Graham is such a hypocrite!"

Fox News and CNN are not reporting these because they're principled. But just like the politicians, they come up with a reason why it's not hypocritical. "It's because the opposition party held the senate in 2016", "They made this about principles and said they wanted us to hold them to their word", "Our objection was about a categorical rejection of any nominee", etc, etc, etc. That's the important thing to keep in mind: when Fox News is calling out Pelosi/Schumer and CNN is calling out Mcconnell/Graham, they're not doing it because they're staunch opponents to hypocrisy. They're doing it because it helps their side.

So, the question of who gets called out is mostly who you listen to. If you consume mostly Fox News, DailyWire, etc - you're going to hear about Democrat flip-flops; if you consume CNN, MSNBC, ABC, etc - you're going to hear about Republican flip-flops. They might have ostensible reasons for why they're only calling out one side... but it's not the actual reason for the call-outs.

Answer 14

Republicans and Democrats will make decisions when politically expedient and come up with reasonings like "precedent" and "will of the people" to justify it. In 2016 it was Democrats saying "do your job and give Garland a vote", with Republicans opposing with "let the next president decide", and now in 2020 it is Republicans saying "do the job we were elected to do", with Democrats opposing with "let the next president decide". This symmetry is noted in the original question.

Of course, precedent is important, but Congress is not truly bound by precedent, but by law. Here is a brief history of the "nuclear option" to remove the 60-vote of cloture, including its relevant Supreme Court nominations:

• In 2013, Senate Democrats vote to remove the 60-vote rule for all nominations other than for the Supreme Court, instead using a simple majority. The rationale was in response to Republicans filibustering nominations under Obama. (Interesting foreshadowing: Mitch McConnell warns Democrats that they will regret this, and sooner than they think.)

• In 2016, Senate Republicans refused to consider Garland's nomination.

• In 2017, Senate Republicans voted to remove the Supreme Court exception from 2013, after Senate Democrats filibustered the nomination of Gorsuch.

If you take what Republicans said in 2016 as precedent, then they appear hypocritical. If you consider the Democrat's invoking of the "nuclear option" from 2013 and the 2017 vote by Republicans to remove the Supreme Court nomination exception, then there is no hypocrisy from Republicans, as they voted on this exact rule change in 2017. Notwithstanding precedent, Republicans are within their full legal capability to invoke majority rule.

To answer your question: it depends on which media outlets you listen to. If you listen to CNN, then Republicans are being hypocritical. If you listen to Fox, then Democrats are being hypocritical (the Fox link you cited). The issue is highly partisan and you may see an imbalance because there are far more liberal media journalists than conservative media journalists and Google News as an example promotes more liberal news organizations than conservative ones. (Original study)

Answer 15

In addition to the other answers, the time frame is different. Scalia died February 13th 2016, and the following day Mitch McConnell stated that the senate would not consider anyone put forwards by Obama.

Meanwhile Ginsburg died 19th September, much closer to the election. So if February was too close to the election for it to be fair to confirm a new Supreme Court judge, surely the argument is even stronger when the vacancy occurs 7 months later.

Answer 16

Your question and many of these answers seem to be overestimating the importance of principles here.

Republicans didn't oppose Garland's opposition because they believe in the principle that late presidents shouldn't appoint supreme court justices. They didn't do it to honor Scalia. Those explanations were made up to justify their actions.They did it because they could and it benefited them. It's been done in the past and they were able to do it, so they did. No new precedent was established nor ignored. The precedent is that parties do what they can to further their interests. It was respected by both parties in this case.

Democrats weren't angry about Garland because they believe that presidents should be able to appoint justices at any point in the presidency. They were angry because the way things went down worked against them. If the situation today were reversed, both sides would be arguing for the same thing they did last time. As it happens, they switched sides on the issue.

Democrats and Republicans do hold and follow certain principles as part of their philosophy, but timing of supreme court justices is not one of those principles, so they both do whatever benefits them at the time.

Now the question of why you seeing so much criticism of Republicans and none of Democrats? Because you are consuming media that is dominated by Democratic voices. Almost all media is, including the majority of answers and up/down votes on this site. It's no more complicated than that. See qwr's answer for more details on media bias numbers.

If you look for hypocrisy on either side of the political aisle, you will find ample examples in both recent and older history. In politics, people easily see hypocrisy in those who oppose them and ignore it on their own side. That's the way people are. Rationalizations follow desires and beliefs, in politics more than anywhere else. It is not the case that Republicans are more hypocritical than Democrats are nor vice versa. However, if almost everything you read is written by one side of the political divide, then even if you are not involved in the politics, you will begin to have the same bias as the authors. In order to understand what's happening accurately, we need to be able to detach ourselves from our biases and those of the media we consume.

[edit] An addition point is that Republicans were successful in getting their man into the court and are likely to win the second time. Political maneuvering is easier to call out when it is successful. However, as we have seen from past situations, there are many outlets eager to point out Republican maneuvering, successful or not, while Fox News is the only major outlet watching Democrats for this type of thing.

[second edit] Many folks seem to see this answer as an opportunity to defend virtuous Democrats against foul Republicans or to cast a vote for Democrats. That illustrates the cognitive bias I'm talking about here but is otherwise pointless. The OP is aware of the facts, seems not to be captured by one side or the other, and sees a bias in the media response. I'm not here to defend or advocate for Republicans, only to help the OP understand the source of the bias they have already observed.

Answer 17

Mainstream media bias, plain and simple.

I know it’s a cliched term at this point, but when I say “mainstream media”, I’m referring to the big 3 cable news networks (CNN, MSNBC, and Fox), the big 3 broadcast networks (CBS, ABC, and NBC), and the two largest newspapers in the country (The New York Times and the Washington Post). These outlets dominate most news coverage in America, and all of them (except Fox) are left-leaning in their coverage (sources: AllSides, Investors Business Daily, Harvard, etc.

Although Republican presidents receive more negative coverage than Democrat presidents do (Bush was 57% negative vs just 41% for Obama), Trump has been the overwhelming target of relentless negative coverage since he was elected (80-95% depending on the time frame).

Put simply, Democrats and most of the major news outlets agree with each other ideologically. That’s why you don’t see a lot of criticism of Democrats’ hypocrisy. It’s an error to rely on their coverage to formulate your perspective on the matter.

If you scope your search to more right-wing outlets (Fox, National Review, The Federalist, the Daily Caller, the New York Post, Washington Examiner, etc), you will undoubtedly see the criticism cut in the other direction. These news sources, however, make up a much smaller share of American news coverage.

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On a side note, all politicians have an agenda (it is, after all, their job). Ironically, they are all quite principled on whatever that agenda is. Unfortunately, scant few are actually honest about it, preferring to make an appeal to whatever principled reason is more politically convenient at the time to justify their position.

In 2016, Republicans didn’t want Obama — a President they made it their mission to obstruct — to nominate what they perceived to be another SJW judge to SCOTUS. Full stop.

Mitch McConnell didn’t have to waterboard everyone with some BS excuse about nominees in election years or whatever. All he had to do was say “No” and leave it at that.

In 2020, Democrats don’t want Trump — a president they despise — to get another bite at the SCOTUS apple. It’s sure fun to point out Republicans’ hypocrisy this time around, but we need to stop pretending it would be any different if they were in charge.

Answer 18

The Republicans wanted to oppose Obama's Supreme Court nomination, since Obama was a Democrat, but now, Republicans are changing their mind since the incumbent president is a Republican, Donald Trump. They only used "nominating someone to the Supreme Court in an election year is bad practice" as an excuse to not support the Democratic Supreme Court nomination. However, this time, it's different. Donald Trump is trying to get a conservative Supreme Court nominee onto the Supreme Court to support himself. He's trying to get the Supreme Court justices to decide the election, which is completely unconstitutional.

Answer 19

It's important to note that Republicans did not "set a precedent" in 2016; they simply followed the existing precedent.

Statistically speaking, you'd expect approximately 1 in 4 Supreme Court Justice deaths to occur during an election year, so it would be very strange indeed if 2016 were the first time this had ever happened! In fact, it's happened 29 times in the history of the USA. For over a century, a very clear precedent has been followed in such cases: when the Presidency and the Senate majority belong to the same party, the President's election-year nominee gets confirmed, and when they don't, the Senate waits until the next term to confirm a new nominee.

The only kinda-sorta exception has been in 1968, when President Johnson nominated Abe Fortas -- a sitting Justice at the time -- to fill the role of Chief Justice, which was technically not open yet; there was an understanding that Chief Justice Earl Warren was planning to retire as soon as a successor for him was confirmed, but until that time he remained active as Chief Justice. The Senate was controlled by the same party as the President, but there were enough people of both parties who had ethical concerns about Fortas that his nomination was filibustered and failed to achieve cloture. Given the unique circumstances, it's not clear whether this should even be counted as an exception to the precedent.

Mitch McConnell made reference to this long-standing precedent at a press conference in 2016 speaking of the plans to fill the seat left open by Justice Scalia's death. He noted that this was the same view held by Joe Biden the last time this had happened, in 1992 after the resignation of Justice Thurgood Marshall.

That the media's criticism highlights an "inconsistency" that does not exist, consistently pretends that 2016 was the only precedent when in fact Republicans' conduct in both the 2016 and 2020 nominations are fully in line with the existing precedent that's held true since before any of us or our parents were alive, and also fails to point out Democrats both changing their position and attempting to ignore the precedent both times, can honestly only be ascribed to media bias. Whatever one may think of the parties or the candidates involved, the facts of the matter are quite clear, and no explanation but bias explains the media's open disregard for those facts.