No, Confirming a Justice Before the Election Doesn’t Break Any Merrick Garland Precedent

Expect to hear these words repeated in a context-free manner over the next few weeks: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”

That was Senate Majority Leader Mitch McConnell back in 2016 after the death of Supreme Court Justice Antonin Scalia. It was his reasoning for refusing to allow the nomination of Merrick Garland to proceed to a Senate vote.

Now, Democrats say, the Kentucky Republican is a hypocrite because of the fact that he’s going to move forward with any nomination President Donald Trump might submit to the Senate after the death of Justice Ruth Bader Ginsburg on Friday. He’s supposedly going against the so-called Biden rule, the quasi-precedent he invoked four years ago — originally put forth in 1992 by then-Sen. Joe Biden, which is a nice bit of irony given how this election year has shaken out.

Needless to say, Democrats are going to use this against McConnell:

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The one thing Democrats aren’t going to tell you is who controlled the Senate and the White House in both 1992 (when Joe Biden first enumerated the Biden rule) and 2016 (when Mitch McConnell invoked it). In 1992, Republican George H.W. Bush was president and Democrats were in control of the Senate. In 2016, Republicans controlled the upper chamber and Democrat Barack Obama was in the White House.

That precedent makes all the difference, according to a piece authored by National Review senior writer Dan McLaughlin before Ginsburg’s death.

“History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016,” he wrote in the piece, published last month.

Should the Senate consider a replacement for Ruth Bader Ginsburg before Election Day?

“The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat.

“Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.”

“Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration,” McLaughlin wrote.

The president made a nomination in all twenty-nine cases. [Emphasis his.] George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.”

McLaughlin noted: “Donald Trump has the raw power to make a Supreme Court nomination all the way to the end of his term. Senate Republicans have the raw power to confirm one at least until a new Senate is seated on January 3, and — so long as there are at least 50 Republican senators on that date — until Trump leaves office. Whether they should use this power, however, is a matter of norms, and of politics.

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“Norms are crucially important. If parties cannot trust that the other side will abide by established norms of conduct, politics devolves rapidly into a blood sport that quickly loses the capacity to resolve disagreements peaceably within the system. Those norms are derived from tradition and history.”

Those norms are on Trump’s side, McLaughlin argued.

In uncomplicated cases where the White House and the Senate were controlled by different parties, only one of eight pre-election vacancies resulted in a nominee being confirmed before Election Day. Two others were confirmed, but only after the party which controlled the White House won the presidential election.

Meanwhile, when it came to nominations by a White House where the president’s party also controlled the Senate, nine of 10 were confirmed.

It’s worth noting, too, that the failure was Lyndon Johnson’s nomination of Abe Fortas to chief justice after the then-president had announced he wouldn’t seek another term.

It didn’t help that Fortas was plagued by a host of ethical controversies, including a problematic closeness with the Johnson White House and his acceptance of dubious payments related to his teaching gig at Washington, D.C.’s American University.

In a statement, McConnell leaned on the fact that the GOP controls the upper house, which handles the confirmation process for judges.

“Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” he said.

“Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”

This isn’t against the precedent set by McConnell’s treatment of the Merrick Garland nomination or the spirit of the Biden rule — a rule which never became a norm because it hadn’t needed to be invoked between 1992 and 2016.

It’s probably better to cite the fact that in the 128 years between Grover Cleveland’s nomination of Melville Fuller to chief justice and Garland’s nomination, no president whose party didn’t control the Senate submitted a non-recess appointment nominee during an election year. Most of the time before that, they failed.

Meanwhile, there’s plenty of precedent for whoever President Trump puts forward as a replacement for Ginsburg.

Most of the time, such nominees succeed. Left-wing protesters might be infuriated, but facts are facts.

If Democrats like Senate Minority Leader Chuck Schumer want to cite Garland as a precedent, they’re citing the wrong guy.

Republicans are also going to remember one other thing — if this were Democrats, they would nominate someone without batting an eye, norms or no norms. Thankfully, the norms are on the GOP’s side.

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