From the Right



Who's violating norms these days?

Michael Barone on

Norms, we are told, matter. Violating norms, recklessly disregarding norms -- these are charges on which President Donald Trump is often arraigned in the court of public opinion.

The indictment starts with his annoying habit of inventing insulting nicknames for his opponents and critics. You can add to the list as you will and perhaps come up with enough names for a 700-plus-word newspaper column.

But Trump hasn't been the only one disregarding norms of late. Consider the question of whether and when the president and Senate should fill the Supreme Court seat vacated by Justice Ruth Bader Ginsburg.

The historic precedent is clear, as set out by National Review's Dan McLaughlin. When a vacancy occurs in a presidential year and the opposition party has a majority in the Senate, the president can nominate, but the nominee almost always isn't confirmed.

There have been 10 such vacancies in the history of the republic. Presidents made pre-Election Day nominations in six cases, but only one nominee was confirmed before the election. That was back in 1888.

Presidents whose parties had Senate majorities selected nominees in election years 19 times, and 17 of those nominees were confirmed. One of the two rejections came in 1968, when President Lyndon Johnson's nominee for chief justice, Abe Fortas, was blocked by a bipartisan filibuster.


Senate Majority Leader Mitch McConnell thus was following precedent when he blocked consideration of Barack Obama's nominee to fill Antonin Scalia's seat; he is also following precedent by promising a floor vote on Trump's nominee to fill Ginsburg's.

It is Democrats who are inconsistent here. If you think a president's nominee is entitled to a vote from an opposition Senate, then, a fortiori, you think she's entitled to a vote from his own party's Senate.

You may not think such flip-flopping violates a norm. But Democrats' threats to pack the Supreme Court with additional justices if they win the presidency and a Senate majority certainly does.

The Supreme Court has had nine justices since 1869. After his landslide reelection, President Franklin Roosevelt tried to add up to six more in 1937. That was soundly rejected, even though his Democrats had a 76-16 majority in the Senate and a 334-88 majority in the House.


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