Whose Rule Is It Anyway? Battle Over SCOTUS Nomination Centers Around Election Year
Within hours of U.S. Supreme Court Justice Anthony Kennedy announcing his retirement, speculation about who will replace him and when President Trump's pick should be made has kicked into high gear in the U.S. Senate.
Republican Senate leaders said they are ready to move forward now, and get President Trump's next pick for the nation's highest court through the nomination this Fall.
Democrats in the Senate, however, say they are going back on what they said in 2016, when Conservative Supreme Court Justice Antonin Scalia died during President Barack Obama's final term.
Now, a fight over who really started the idea that one party should prevent a sitting president from nominating someone for an open seat on the Supreme Court during an election year has sprung up.
Was it then Senator Joe Biden in 1992? Was it Senate Majority Leader Mitch McConnell in 2016? What about Senator Strom Thurmond and LBJ in 1968? Whose 'rule started this fight?
There are plenty of questions about all of this, so let's take a look back through 50 years of U.S. political history and see if we can figure out whose 'rule' might be responsible.
Is the 'McConnell Rule' responsible?
Conservative Justice Antonin Scalia passed away in February of 2016, Obama's final year in office. Obama nominated Judge Merrick Garland, who most experts say is a moderate/liberal. The political experts say it was a safe pick by Obama at the time to get enough Senate Republicans on board to get him confirmed.
However, Senate Majority Leader Mitch McConnell successfully managed to keep Garland's confirmation from ever happening, keeping any vote to confirm Obama's pick for the high court from happening through the end of the Congressional year on January 3, 2017.
McConnell made the case to fellow Republicans in the Senate and the public that since it was the final year of Obama's presidency, the voters should decide who picks the next Supreme Court justice. McConnell's gambit survived political and public pressure, warnings from legal experts, and even a court challenge. In the end, it paid off handsomely for conservatives.
Trump won the election, and within two weeks of his inauguration he selected Conservative Judge Neal Gorsuch, who sailed through his confirmation, and now sits on the high court.
With Kennedy's retirement, Trump is now set to select someone conservative enough to hold a majority on the Supreme Court for decades.
So what about the 'Biden Rule'?
Now that Justice Kennedy has officially announced his retirement, Democrats say that what happened in 2016 should happen again with the 2018 mid-term elections nearly four months away. Hoping to win control of the Senate in November, the Democrats also want control of confirming Trump's pick.
Wednesday afternoon, on the Senate floor shortly after Kennedy made his announcement, Democratic Minority Leader Chuck Schumer said, “Our Republican colleagues in the Senate should follow the rule they set in 2016: Not to consider a Supreme Court justice in an election year.”
Is this the same situation? Republicans and Conservatives emphatically say no. They say that this is not the same kind of election, and there is no 'lame duck' president about to leave office. They also say there is no 'McConnell Rule' at all, that he followed the 'Biden Rule'.
When McConnell started to make his case that Garland should not be confirmed, he was careful to always say that there should be no new Supreme Court nomination during a Presidential election year. He was also careful to say, "we're following the Biden rule," whenever possible to establish some kind of precedent established by the words that came straight from the mouth of the man who was Obama's Vice-President at the time, Joe Biden.
So what exactly is the 'Biden Rule'?
That would be a speech then-Senator Joe Biden made in the U.S. Senate in 1992, when he was the Chairman of the Senate Judiciary Committee (which decides if the nominee is suitable for a confirmation vote by the full Senate).
Biden argued that since a Presidential Election was coming, and a vacancy should occur on the Supreme Court by that Summer, then-President George H.W. Bush should wait until after the election to appoint a replacement or appoint a moderate the Democratically-controlled Senate at the time would approve.
The "rule" was never actually applied since no opening ever happened, but McConnell made sure those words came back to haunt the Democrats, and he successfully kept Garland off of the Supreme Court.
Has this ever happened before? AKA does the 'Thurmond Rule' exist or not?
During the fight over Garland's nomination, there was also reference to something called the 'Thurmond Rule'.
In March of 1968, President Lyndon Johnson announced he would not run for re-election that November. That summer, with about 5 months until the election, Johnson nominated sitting Supreme Court Justice Abe Fortas to replace Earl Warren as Chief Justice.
Republican Senator Strom Thurmond successfully blocked the nomination, creating the 'Thurmond Rule', but since there were other problems tied to Justice Fortas at the time, the rule never became a fully recognized precedent. It has been invoked a number of times by both parties to try and stop judicial nominees of outgoing presidents, but many legal associations have said it simply does not exist.
The 'Thurmond Rule' may or may not be a myth, but it appears to be what politicians in the Senate have used to justify holding off judicial nominees submitted by presidents several months before a presidential election. Democratic Senator Diane Feinstein attempted to use it against President George W. Bush, and many Republicans also used it during the Garland nomination fight in 2016.
Do any of these 'rules' matter?
When it comes down to it, President Trump simply has just enough votes to get his pick confirmed, but with at least two moderate Republicans, he will have to be careful who he nominates.
Incidentally, Senator McConnell also has another Democratic Senate leader to thank for making that happen. Until 2013, it took 60 votes in the U.S. Senate to end debate and vote on a presidential nominee. Since McConnell and the Republicans were successfully blocking President Obama's pick, then-Majority Leader Senator Harry Reid invoked the 'nuclear option', which allowed a simple majority of 51 votes. That's how many Republicans make up the majority in the Senate today.
Video of Senator McConnell warning Reid and Senate Democrats against 'going nuclear' circulated Wednesday afternoon, haunting Democrats with McConnell's prophetic words: “You’ll regret this, and you may regret this a lot sooner than you think."
Getting those 51 votes will not be a cakewalk, though. With Arizona Senator John McCain dealing with health issues, he may not be available for possible votes, and he also has a very contentious relationship with President Trump. Also, at least two more moderate Republican senators could balk at voting for anyone too controversial or conservative that could hurt them politically. However, there's always Vice-President Mike Pence, who can step in and cast tie-breaking votes.
So when the next Supreme Court Justice is confirmed and sworn into office, Conservatives will likely have a 5-4 majority for at least two decades, but Liberals will likely take some comfort that the new justice probably won't be the vote to overturn landmark decisions like Roe vs. Wade.