Leave politics to the politicians?

This is Joseph.

Let us recall the last two end of presidential terms SCOTUS vacancies:

• Antonin Scalia: February 13, 2016 (position held to after the next election, filled April 10, 2017)
• Ruth Bader Ginsberg: September 18, 2020 (position filled October 27, 2020)

So one position was filled in six weeks (under a Republican president), the other was open for fourteen months (under a Democrat president) despite a nomination being made well in advance of the election (March 16, 2016). Why does this matter? Consider this interview with Clarence Thomas:

Asked if conservatives were living up to the “mantra” of civility in politics, he said: “They’ve never trashed a Supreme Court nominee. The most they can point to is Garland did not get a hearing, but he was not trashed.”

Thomas was referring to Attorney General Merrick Garland, who as an appeals court judge was President Barack Obama’s nominee to the court after Scalia died in 2016. Sen. Mitch McConnell (R-Ky.), then the Senate majority leader, refused to schedule a confirmation hearing.

“It was a rule that Joe Biden introduced, by the way, which is you get no hearing in the last year of an administration,” Thomas said. He did not mention that Republicans pushed through Justice Amy Coney Barrett’s nomination to replace Ginsburg just weeks before Election Day in 2020.

But that last part is the entire story. If respect for the Biden rule explains Neil Gorsuch instead of Merrick Garland then how does one explain Amy Barrett instead of a held position? Is it holding Democrats to a different standard than Republicans? 

The real answer is that Senators were playing politics and willing to break norms in order to gain a nomination advantage on the court. Guess what? There are other norm breaking methods that can be used -- like how Abraham Lincoln expanded the court in the 1860's to 10 members. Why would you ever try and justify the decision to use brute political power to shift the balance of the court at the same time as a major and controversial court decision that directly derives from it? 

All you do is make the court seem even more political. If the court is political, as opposed to a neutral arbiter of the law, then it should not be surprising if political solutions start to be considered.