Analysis: Portman Says He Hasn't Changed His Tune On Supreme Court Votes

Sep 22, 2020

In February 2016, nine months before the presidential election that produced the Trump presidency, President Barack Obama nominated Merrick Garland, a respected federal appeals court judge, to replace a conservative justice of the Supreme Court, Antonin Scalia, who died suddenly that month.

At the time, Rob Portman, the Terrace Park Republican who is the junior senator from Ohio, said the U.S. Senate should not give Garland a confirmation vote while a very contentious presidential election was going on – an election that saw Donald Trump take back the White House for the Republicans in an Electoral College win over Hillary Clinton.

Garland never did get that confirmation vote in the GOP-controlled Senate; and the new Republican president ended up choosing Scalia's successor.

Fast forward four years.

Last week, Justice Ruth Bader Ginsburg, a liberal stalwart on the court who literally willed herself to keep on living to prevent Trump from naming her replacement, passed away at the age of 87.

Now, with a Republican president in the White House and Republicans still in charge of the Senate, Portman's tune has seemingly changed – and he is not alone among his GOP colleagues in the Senate.

Now Portman is willing to go forward with the vetting of Trump's nominee for the Ginsburg seat. An announcement on that is expected from the White House Saturday; and the president has said his nominee will be a woman.

It goes without saying that that woman will be of a conservative bent.

So why was going forward with a Supreme Court nomination during a presidential election in 2016 a horrible idea and not such a bad idea when we are going through yet another contentious presidential election, with less than six weeks to go?

Circumstances have changed, Portman said Tuesday in a conference call with Ohio reporters.

"My comments in 2016 were made in the context of a divided government,'' Portman said. "I said back then that confirmation would be a very contentious process."

Four years ago, Portman didn't talk about the numbers, but today he is, pointing out that since the 1880s, no Senate has confirmed the opposing party's Supreme Court nominee in an election year.

"In the 19 occasions that a vacancy has occurred when the president and the Senate are of the same party, the Senate has confirmed the nominee and filled the seat in every instance but one,'' Portman said.

"The precedent is very clear; it couldn't be any clearer,'' Portman said on the conference call. "When the president and the Senate are of the same party, that person is confirmed."

David Niven, a professor of political science at the University of Cincinnati, said Portman's "convoluted" explanation of why he opposed going forward in 2016 and supports it now can be boiled down to one simple sentence: We can do it because we have the votes to do it.

"They are in a position to get what they want – another conservative vote on the court,'' Niven said. "It's not hard to figure out."

Missing, though, from Portman's written statements on the Supreme Court vacancy and his remarks on the conference call was any indication that he thinks the Senate should do what Trump wants – hurry up and confirm his appointee before the Nov. 3 election.

Portman's boss in the Senate, Majority Leader Mitch McConnell of Kentucky, has also avoided promising a confirmation before the election, knowing that 38 days – which is how many days will be left before the election if the nominee is announced Saturday – may not be enough to go through a contentious confirmation process. It may be that the Senate will end up acting in a lame duck session after the election, especially if Democrat Joe Biden wins the White House.

McConnell is enough of a realist, too, to know that losing control of the Senate, where he has a slim 53-47 margin, is a possibility as well.

"Trump thinks he can get his base all excited by this and win a second term on a Supreme Court appointment,'' Niven said. "But I don't see how this helps you win the election. It doesn’t win you anything. And there are Republican senators running for re-election who really don't want to deal with this in the final weeks of the campaign."

Portman, in his news conference, said he supposes that it is possible that a Trump nominee could be confirmed before the election, but said the confirmation "should be a fair and orderly process."

"I don't know how this would affect the election,'' Portman said. "I've heard people on our side say that they believe this would energize our base; and I've heard the other side saying they are getting a burst of energy from this too. We'll see."

Credit Jim Nolan / WVXU

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