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Washington Post op-ed writer Charles Krauthammer attempted to alter the Republicans’ argument over the appointment of an Antonin Scalia replacement by, you guessed it, insisting the Democrats’ actions are just as bad, if not worse, than the Republicans. It should be no surprise that the argument he advances is lacking. Here we go:

In Year Seven of the George W. Bush administration, Sen. Chuck Schumer (D-N.Y.) publicly opposed filling any Supreme Court vacancy until Bush left office.

Krauthammer is not the only conservative (sorry, neoconservative) to bring this up, but the point is ultimately moot: in a 49-49 split senate with two independent senators, Alito was ultimately approved with the assistance of four Democrats, 58-42. So great, Schumer much later said Democrats should fervently oppose any possible Bush nom, but the chance never arose, so it’s not really comparable to McConnell, who opposes any possible Obama nom and actually has the senate numbers to do it.

Republicans, say the Democrats, owe the president deference. Elections have consequences and Obama won reelection in 2012.

Yes. And the Republicans won the Senate in 2014 — if anything, a more proximal assertion of popular will. And both have equal standing in appointing a Supreme Court justice.

Two things here Krauthammer seems confused about. The first is that he just lambasted Schumer for asserting that he and his fellow 48 Democratic senators would do all in their power to oppose any possible future Bush nom, even though, according to Krauthammer, their election to office is ‘a more proximal assertion of popular will’ than the election of the President. Second, there’s no logical reason Krauthammer should make such an assertion: Turnout for the 2004 Presidential election was ~57%, or approximately 121,000,000 votes. Only 58,000,000 voted in the senatorial race in 2006, 63,000,000 fewer voters than for the Presidency; a paltry 40.4% voter turnout.

The same is true of the 2012 Presidential election and subsequent 2014 senatorial race: 55% turnout for the Presidential (127,000,000 votes) vs. 36.6% turnout for the senatorial (45,000,000 votes). How exactly is that ‘a more proximal assertion of popular will’ if less than half the eligible voting populace fails to participate? It isn’t, unless Krauthammer is bold enough to claim non-participation is equatable to participation.

Minority Leader Harry Reid (D-Nev.) complains about the Senate violating precedent if it refuses a lame-duck nominee. This is rich. It is Reid who just two years ago overthrew all precedent by abolishing the filibuster for most judicial and high executive appointments. In the name of what grand constitutional principle did Reid resort to a parliamentary maneuver so precedent-shattering that it was called the “nuclear option”?

Remember, Krauthammer has already admitted he believes saying you’re going to do something and actually doing it are the same. So Republicans are, by his own reasoning, equally culpable for the eventual use of the ‘nuclear option,’ because Bill Frist threatened to use it in 2005 when Democrats filibustered multiple Bush judicial appointees. But my guess, though, is that Krauthammer wants it both ways: Republicans are not guilty when they speak but don’t act (though Democrats are), and Republicans are equally guilty as Democrats when they act (though Democrats are more guilty when they act).

As I said, this is all about raw power. When the Democrats had it, they used it. The Republicans are today wholly justified in saying they will not allow this outgoing president to overturn the balance of the Supreme Court. The matter should be decided by the coming election. Does anyone doubt that Democrats would be saying exactly that if the circumstances were reversed?

The comparison Krauthammer wants to draw doesn’t exist. Despite Democrats’ efforts, there was a vote on Alito’s appointment, and he made it through. He’s on the bench. Republicans are saying Obama doesn’t have the right to even nominate someone. It’d be one thing if the Republicans said they’ll vote against any Obama nomination and draw the process out beyond the election until the new President is inaugurated, but that’s not what they’re doing. They’re arguing the President doesn’t have that power, period. And they’re wrong.

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