Should the confirmation of a new Supreme Court Justice be delayed until after the November elections, so that "the American people have a voice in the selection"? One-third of the Senate, which must confirm a nominee, is up for election.
It’s easy to make the argument that it SHOULD be (even though it definitely WILL NOT be) based on how Republicans handled the nomination of Merrick Garland.Basically, Republicans argued that since 2016 was a Presidential election year, there should be no Supreme Court nomination until after the election was over. As the majority party, they had the power to simply refuse to schedule a vote on Garland, and that’s what they did. They liked to call this the “Biden Rule” based on a speech then-Senator Joe Biden gave in the Senate in 1992, which was also a Presidential election year. At the time, Biden was speaking hypothetically, as there was no vacancy, and his remarks were really about how politically fraught the confirmation process had become rather than allowing the election itself to play a role in the process. His remarks have been taken badly out of context, and they were the expression of an opinion (albeit one of a powerful Democratic Senator who chaired the Judiciary Committee at the time) not a formal rule that the Senate ever considered adopting:In Context: The 'Biden Rule' on Supreme Court nominations in an election yearRepublicans used this little-remembered speech from 24 years earlier to justify their unprecedented refusal to grant Garland a hearing. It is NOT true that the Senate does not confirm nominations in Presidential election years as a matter of routine practice or tradition, there have been 6 justices confirmed by the Senate during presidential election years since 1912 and overall there have been 14 since 1789. This includes several cases where the Senate and the White House were held by opposing parties.Supreme Court vacancies in presidential election years - SCOTUSblogFilling a Supreme Court seat in an election year happens more often than you thinkAt least 14 Supreme Court justices have been confirmed during election yearsIn addition, in October of 1956, President Dwight Eisenhower, who was up for re-election the following month, made a recess appointment to the Supreme Court! A month before the election! (Recess appointments occur when the President appoints someone to fill a vacancy while the Senate is in recess, they must be confirmed by the Senate when it returns to session or else they leave office when the next Congress takes office.) And that doesn’t even count as one of the 14 who were confirmed in an election year.So, historically, the Senate HAS voted to confirm Supreme Court justices in Presidential election years, including in cases when the Senate and Presidency were held by opposing parties. What Republicans did in 2016 was unprecedented. The Senate had never done anything like that before. It had been faced with the same basic circumstance on a number of occasions in the past, and had allowed the nomination to move forward.(It’s important at this stage to point out that the Senate was not obligated to confirm Garland, specifically, the Senate can reject any nominee it chooses to. What was unprecedented was that they refused to even consider the nomination on its merits— they held no hearings and took no vote — and made clear they would not consider any nomination at all from the sitting President. That’s what was unprecedented. The Senate acted within its constitutional powers in doing so but in violation of long-established norms and traditions.)BUT, 2016 happened! Doesn’t this mean there’s a new rule, the “McConnell Rule”, that says now the Senate will NOT confirm a Supreme Court Justice in an election year? Since Republicans did that to a Democratic nominee, shouldn’t it now happen to a Republican nominee? Didn’t they set a new precedent, and create a new way of handling these kinds of situations?Well, first of all, Republicans were the majority party in the Senate in 2016, and are the majority party now. The majority sets the agenda for the Senate. They decide if a confirmation vote shall be held. So Democrats cannot “do to” Republicans what Republicans “did to” them, at least in this case.Beyond that, it’s not unreasonable to see “Presidential Election Year” and “Midterm Election Year” as two completely different sets of circumstances. So even if Republicans HAVE established a new rule (more on that in a moment) it’s not really that crazy for them to say they only meant Presidential years.But beyond that… look, I understand the desire by Democrats to say, “Republicans play procedural hardball to achieve partisan objectives, and so we have to do the same thing and not worry about history or precedent or tradition or whatever is the “right” thing to do according to the procedural norms that have made our government function for the last 230 years.” There’s a desire to say, “They cheated us, so next time we should cheat them.” (Set aside for a moment the fact that Democrats have no control over this current process at all as the minority party.)That mentality, understandable as it is, is the whole damn problem.Few people really understand how much our system of government depends on these procedural norms — on traditions both parties generally adhere to in the interest of keeping the whole system working for everyone over the long term. These are not things that are codified in the Constitution or in formal law, but they were developed over the years to fill in the gaps — to clarify how certain things would work within the government when there were no clear instructions from the Constitution.When Republicans refused to even consider any Supreme Court nominee put forward by Obama in 2016, they violated a norm that said any qualified nominee would receive due consideration and a vote. This didn’t guarantee confirmation, just a vote one way or the other. It was the way things had always been done.When Republicans broke this norm, they created an incentive for Democrats, in the future, to refuse to consider the nominations of Republican presidents. That’s why you hear Democrats carping about this now, “Hey, it’s an election year, don’t we have to wait? Isn’t that the new rule?”The problem is that if it IS the new rule, if we really won’t consider nominations in an election year (midterm or Presidential) then there are only two years out of every four when it’s possible to fill a vacancy on the Court at all. And once we go to two years out of every four, it’s not going to be hard to stretch those boundaries. Hey, Presidential campaigns really begin the fall of the year BEFORE the election. Maybe any time after September of the preceding year should be off limits! It’s a slippery slope. Once one party figures out a way to screw the other out of filling a vacancy on the Court, the other party will come back and escalate that further. Eventually, we’ll have vacancies on the Court lasting two, three, even a full four years. We’ll have multiple unfilled vacancies at the same time. It’ll be bad for the country, it will gradually destroy the Supreme Court as an institution.So no, what SHOULD happen is that steps should be taken by both parties to ensure that what happened in 2016 never happens again, there should be a bipartisan agreement on how to handle vacancies in election years, and it should be codified into either the rules of the Senate or into law. Instead of “Let’s do to them what they did to us,” the way to think about this should be, “Let’s figure out a way to get both parties to buy back into the notion that the long-term health of our political institutions is more important that short-term partisan advantage.”That, of course, is not what WILL happen. I have no doubt that if Democrats were to take the Senate in 2018, and a vacancy opened on the Court in 2020, or even CLOSE TO 2020, they’ll find a reason to refuse to consider a Trump nominee. And then the next time Republicans control the Senate and a Democrat controls the presidency, they’ll find a way to refuse to fill any vacancy at any point in that president’s term. And each side will just escalate, and the supporters of each party will DEMAND that they do so as revenge for what was done before (just as some conservatives argued Garland’s treatment was revenge for Robert Bork 28 years earlier).And our system of government will become more and more broken.