“Honestly, in 2016, I was skeptical of the whole Garland filibuster at the time,” McLaughlin said, referencing the blockade of Obama’s pick, Merrick Garland.
The first justification for the apparent flip came from traditional conservatives like McLaughlin and conservative think tanks. They made a historical argument. Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the libertarian-leaning Cato Institute and author of the new book, “Supreme Disorder,” noted that out of the 19 times a justice was nominated to the Supreme Court when one party held the White House and Senate, 17 were confirmed.
Moreover, the two exceptions failed for nonpartisan reasons. President George Washington temporarily withdrew the nomination of William Paterson since it accidentally violated a constitutional clause. And President Lyndon Johnson’s attempt to promote Justice Abe Fortas to become chief justice angered conservative members of his own party, who disliked Fortas’ liberal-leaning rulings and openly questioned whether it was ethical for Johnson to promote his former personal lawyer to the position.
The confirmation rate goes down to just under 60 percent when the White House and Senate are controlled by two different parties, Shapiro said.
“And that difference is heightened significantly in election years,” he added.
Many Republicans, from McConnell to Romney — the lone Republican who voted to convict Trump on one article of impeachment earlier this year — echoed this reasoning.
“It is appropriate for a nation that is … center-right to have a court which reflects center-right points of view,” Romney said on Tuesday.
Other Republicans — including some on the campaign trail — have adopted elements of the more hyperbolic arguments, specifically that Democrats are hell-bent on expanding the Supreme Court if they assume power.
Although several prominent progressives have pushed Biden to consider endorsing an enlarged Supreme Court, the Democratic nominee has frequently declined to do so. Nevertheless, Republicans are raising concerns that progressives will bully Biden into acquiescing to their demands — a common charge in general, but a potent one when it comes to the court.