The only rules Mitch McConnell needs are in the Constitution.
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epublicans have every right to fill the vacancy left by Ruth Bader Ginsburg on the Supreme Court. Please save your irate emails accusing me of hypocrisy, because I have never believed or advocated for the “Biden Rule” or the “McConnell Rule” or any other fantastical “rule” regulating the confirmation process, other than the prescribed constitutional method.
In March 2016, in the heat of the Merrick Garland debate, I argued that “the Republicans’ claim that the ‘people’ should decide the nominee is kind of a silly formulation,” and the best argument for denying Barack Obama another seat on the court was to stop him from transforming it into a post-constitutional institution that displaces law with “empathy” and ever-changing progressive conceptions of justice.
For a decade, the conventional wisdom said that the GOP’s “obstructionism” — by which liberals meant completely legitimate governance that didn’t acquiesce to Obama’s wishes — was going to sink the party. Conventional wisdom was wrong in the elections held during the Obama presidency. It was wrong in 2016.
The Garland debate did not sink Republicans, who held the Senate and won the presidency. In fact, one of the central promises the GOP relied on to procure those victories — especially among Evangelical voters — was that they would nominate and confirm originalist justices to the Supreme Court. If Donald Trump and Mitch McConnell end up installing replacements for Antonin Scalia, Anthony Kennedy, and Ruth Bader Ginsburg . . . well, “but Gorsuch,” indeed.
McConnell had no constitutional obligation to take up Obama’s Garland nomination in 2016, and he has no obligation to wait for 2021 to vote on the next appointment. There is no constitutional crisis. There is only now a faction of left-wing partisans who are threatening to weaken and pack courts because they didn’t get their way.
Guess what? It was the Democrats who demanded that the GOP ignore the “Biden rule” when it wasn’t convenient for them. It was Democrats who blew up the judicial filibuster. It was Democrats who argued that Trump shouldn’t be allowed to have any nominees. It was Chuck Schumer who argued that Democrats should “reverse the presumption of confirmation” for now-beloved George W. Bush in his second term. It was Democrats who engaged in an authoritarian-style witch-hunt against Brett Kavanaugh in an effort to delegitimize the court. Democrats care about as much about precedents as do “liberal” Supreme Court justices.
Now, I don’t think a single person in American politics actually cares about the “Biden rule,” either. Even if they did, however, the precedent doesn’t apply in this case. Biden argued that nominations shouldn’t be taken up during presidential-election years when Senate and presidency are held by different parties. Trump isn’t a lame-duck president; he’s running for reelection. But let’s concede for the sake of argument that McConnell is a massive hypocrite. Then, it’s fair to say, so are all the pols who accused McConnell “stealing” the Garland seat.
Joe Biden now says that “voters should pick a President, and that President should select a successor to Justice Ginsburg.” (They did. They picked Trump.) In March of 2016, however, Biden wrote in the New York Times that the Senate had a “duty” to confirm justices:
In every instance we adhered to the process explicitly laid out in the Constitution: The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent. It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.
Is Biden saying that McConnell should ignore his sacred constitutional duty?
Biden knew then, as he knows now, that there’s no constitutional duty, nor is there any precedent, either prohibiting or requiring Republicans to fill a vacancy.
Nor is there any prohibition (as nearly every Democrat has already argued) against “rushing” such a nomination. Three Supreme Court justices have been confirmed with less than 45 days remaining in a term — one of them was Ruth Bader Ginsburg, who was nominated by a Democratic president and confirmed by a Democrat-run Senate. As my colleague Dan McLaughlin points out in meticulous historical detail, every real norm points to the Republicans’ filling the vacancy.
Of course, Democrats and the media are going to again warn that Roe. v. Wade hangs in the balance. (I wish!) It’s highly unlikely that a John Roberts–led court would ever overturn Roe. Then again, for conservatives a debate might provide a good window to remind voters about the Democrats’ extremely unpopular position on abortion — on demand and state-funded until the ninth month.
And all the same people who advised Republicans against refusing a Garland confirmation will again warn that the party is engaged in political suicide. There’s no knowing how these fights will play out. But are moderate voters, or Republicans on the fence about Trump, really going to be happy to hear Democrats threatening to blow up the system? Maybe a fight over the future of the Court will remind many conservatives what’s at stake beyond Trump. Let Democrats make their arguments against women such as Amy Coney Barrett or Barbara Lagoa, whom Trump is reportedly leaning towards nominating.
Then again, even if Trump loses in November, you can be confident that keeping his promise to appoint constitutionalists to the nation’s top court won’t be among the top 1,000 reasons why.