For one thing—the most important thing—the #NoHearingsNoVotes strategy has always been about the Supreme Court as an institution, not any particular nominee. We live in a polarized political world, with the most turbulent election campaign of my lifetime. President Obama was reelected in 2012, but the Tea Party response to crony capitalism and ever‐growing government solidified the opposition in the House and brought the Senate to the GOP in 2014. (And I would argue that the only reason Obama was reelected was that the Republicans managed to nominate the one person who couldn’t credibly run against the ever‐unpopular Obamacare.)
The Senate is fully within its rights, given the unique nature of this judicial vacancy, to fulfill its “advice and consent” function by telling the president that we should let this fall’s election determine the Supreme Court’s direction.
I can’t emphasize enough how unprecedented this event is in our legal and political history. The last time that the Senate confirmed a Supreme Court nominee in a presidential election year to a vacancy arising earlier that year was 1932, when Benjamin Cardozo replaced Oliver Wendell Holmes. The last time it did so after presidential‐election voting had begun was 1916—which was also the first time there were confirmation hearings, coming about largely due to anti‐Semitic opposition to Louis Brandeis. The last time that a Senate of the opposing party confirmed someone to fill such a vacancy was 1888, when a handful of Republicans joined the minority Democrats to approve Grover Cleveland’s appointment of Chief Justice Melville Fuller.