Senate
Majority Leader Mitch McConnell, R-Ky., pauses as he speaks with reporters
about Supreme Court nominee Brett Kavanaugh following their weekly policy
meetings, at the Capitol in Washington, Tuesday, Sept. 18, 2018. (AP Photo/J.
Scott Applewhite)
In the aftermath of the news that liberal Supreme Court
Justice Ruth Bader Ginsburg has
once again been treated for pancreatic cancer, talk of a potential vacancy
on the court has once again heated up. While there will be disagreement over
how to handle such a vacancy, it's clear that everyone knows a Supreme Court
battle in 2020 will be brutal and contentious.
Chris Wallace, the host of Fox News Sunday, weighed in on Friday, "We all wish her a long, happy,
healthy life. I will say this though, and again, there’s no reason not to think
that she won’t be on the court the first Monday in October, but if she were
forced to step down, this would make the Kavanaugh hearing, the Gorsuch
hearing, Clarence Thomas, it would make it look like a tea party.”
Former Obama adviser David Axelrod warned Senate Majority
Leader Mitch McConnell not to go through with filling a vacancy, should one
occur:
-----
If there is a SCOTUS
vacancy next year and @senatemajldr carries through on his extraordinary promise to fill
it-despite his own previous precedent in blocking Garland-it will tear this
country apart.
-----
If Ruth Bader Ginsburg were to retire, you can expect to
be regularly reminded of Merrick Garland, Barack Obama's nominee to the Supreme
Court following the death of Antonin Scalia. Garland was never given a hearing
because Mitch McConnell was following The Biden Rule. In June of 1992,
then-Senator Joe Biden, who was chairman of the Senate Judiciary Committee at
the time, gave a speech on the Senate floor arguing that then-president George
H.W. Bush shouldn't attempt to fill a vacancy to the Supreme Court in the
middle of an election year.
Should a vacancy occur in 2020, Democrats will argue,
just as Axelrod has, that this is the precedent and McConnell should table any
Supreme Court nomination until after inauguration day 2021, when there might be
a new president and a different party in the majority of the Senate.
Biden
himself acknowledged the political intentions of delaying the naming of a
replacement when he said, “Some will criticize such a decision and say that it
was nothing more than an attempt to save a seat on the court in hopes that a
Democrat will be permitted to fill it, but that would not be our intention.”
A
vacancy in 1992 never happened, but had it occurred, you can bet that if George
H.W. Bush had attempted to fill a vacancy in 1992, Senate Democrats, led by Joe
Biden, would not have held hearings for that nominee. Joe Biden considered such
a move established precedent.
Except there's one problem: Presidents have made
nominations to the Supreme Court and seen them confirmed during election years.
- In 1912, William Taft nominated Mahlon Pitney to the Supreme Court, who was confirmed by the Senate five days later.
- In
1916, Woodrow Wilson had two election-year nominations to the Supreme
Court, both of whom were confirmed.
- In
1932, Herbert Hoover nominated Benjamin Cardozo to the Supreme Court, who
was unanimously confirmed just over a month later.
- In
1940, Franklin Delano Roosevelt nominated Frank Murphy to the Supreme
Court, who was confirmed by a voice vote.
- In
1987, Ronald Reagan nominated Anthony Kennedy to the Supreme Court, and he
was confirmed in February 1988.
In all of these cases but the last one, the president's
party had a majority in the Senate. Biden made his case about postponing an
election-year nomination to the court while there was a Republican president
and the Democrats controlled the Senate, and he was clearly hoping to avoid
stalling a nomination.
If there's anything Biden's 1992 speech tells us, it's
that Democrats will establish or dismiss precedents based on their short-term
convenience.
Should a vacancy occur in 2020, Donald Trump will have every right
to fill the vacancy, and the Republican-controlled Senate will have every right
to confirm that nominee.
The only precedent here is that the Senate can
exercise advice and consent however they please. Mitch McConnell has already vowed that he'd fill a vacancy in 2020.
Democrats will have to come up with another excuse other than citing a
nonexistent precedent. The Biden Rule of 1992 may have come back to bite the
Democrats in the rear in 2016, but that doesn't mean the GOP has to cave to
their tantrums and rule changes that only serve their short-term political
needs.
Democrats should be very scared of a potential vacancy on
the Supreme Court in 2020. There is literally nothing to stop Trump and the GOP
from filling the seat.
