Thread by @prchovanec

1. What I'm about to say doesn't depend on who is President, or which party controls the Senate.

2. The President serves a 4 year term, not a 3 or 3.5 year term, and he has the power to make nominations until the day that term ends.

3. The Senate's advise and consent role, in approving or rejecting nominations, is real, and may be exercised, through either action or inaction, at its discretion.

4. None of these constitutional powers exist in a political vacuum, or are free of either institutional or electoral consequences. Wise statesmen will consider the former, canny politicians will consider the latter.

5. Obama had the power to nominate Garland in 2016. The Republican Senate majority had the constitutional right to reject him, by either voting him down or declining to take a vote.

6. Politically, this move was risky even in the short-term, because Trump could easily have lost and Clinton nominated an even more liberal justice with an electoral mandate behind her. Instead, their bet paid off, at least short-term.

7. The more negative longer-term institutional consequences were accentuated by the Republicans making the insincere argument that the Senate should never consider such a nomination so late in a President's term, out of principle.

8. It was obvious at the time, and all the more obvious right now, that that was merely a convenient rationale for more partisan and ideological motivations.

9. The Republican decision in 2016 to scrap the filibuster in order to confirm Justice Gorsuch was similar: constitutionally, the Senate can make whatever rules for itself it wants.

10. Senate Democrats made the same decision regarding lower-level judicial appointments in 2013, in order to override Republican minority opposition.

11. Institutionally, both moves (by Reid and McConnell) sharpened partisan feelings and removed traditional rules that were meant to encourage and even require bipartisanship. They were both rationalized by the belief that the opposition had no interest in bipartisanship.

12. Politically, all Senators must eventually face reelection, and if these actions are seen by voters to be unfair, abusive, or flouting the will of the people, and if voters care enough, they risk losing at the ballot box. That is the primary way Senators are held accountable.

13. I can't say enough to make a blanket statement whether Republicans or Democrats have faced any consequences at the ballot box over their handling of judicial nominees. I suspect it has mainly motivated their respective bases, both winning and losing them votes.

14. President Trump has the exact same power as President Obama to make a late-term nomination to the Supreme Court. The Senate has the exact same power as before to confirm or reject (through action or inaction) that nominee.

15. The same "principled" arguments about late-term nominations will be made in 2020 as in 2016, though the roles will be reversed.

16. A key difference is that Democrats will claim, in addition to principle, the idea of reciprocity: what’s good for the goose is good for the gander. No late term nominee for Obama, no late term nominee for Trump.

17. And if Democrats win the Senate, they will - of course - no longer honor any minority filibuster on future nominees, any more than the Republicans honored it with Gorsuch.

18. This is the institutional damage, as well as the political risk, that comes with doing whatever is in your constitutional power to do, regardless of other implications. Because your party will not always be in power.

19. The old solution was for Presidents to appoint nominees that had a reasonable chance of securing some bipartisan support. To be fair, that’s what Obama thought he was doing with Garland.

20. And some will argue that partisanship has already made this impossible. But if it has, it comes with more serious political risk to whichever party finds itself out of power.

21. I’ve always made clear that I strongly prefer Trump’s likely judicial nominees, but despite this will be voting against him in November - and regretfully accept the consequences of what this could mean for the Supreme Court.

22. Despite this, I’d like to think that I can separate the issue of what a healthy constitutional process looks like from my preferred political or ideological outcome.

23. I understand that emotions are high right now. To put it harshly, Democrats feel like they won the lottery when Scalia died, but were denied their winnings, and now they’ve lost the lottery, but time, when their icon Ginsburg died.