Clarifying the Biden Rule: Don’t vote on nominee in election year IF president of different party than party controlling Senate.
Mitch McConnell dropped a political nuclear bomb on Fox News Sunday with Chris Wallace.
In discussing Senate confirmation of Supreme Court nominees, McConnell discussed how he did not allow Obama’s nomination of Merrick Garland to go forward. He contrasted the Republican position with Democrats’ attacks on Brett Kavanaugh by pointing out that Republicans didn’t try to destroy Garland, they simply followed Senate tradition of not voting on a nominee in a presidential election year.
But in describing that history, McConnell said that the history of the Senate going back to the 1800s was to not vote on a nominee in a presidential elections year where the president is of a different party than the party controlling the Senate.
That last provision was picked up on by Wallace, who asked if that meant Republicans would confirm a Trump nominee in the next presidential election year.
McConnell didn’t answer directly, he just repeated that the tradition was not to confirm in the last year where the president was of a different party than controlled the Senate. That would mean, but McConnell didn’t say explicitly, that if there were a Supreme Court vacancy in 2020, the Senate would move forward with confirmation despite the looming 2020 presidential election.
Here’s McConnell’s appearance, the comments in question start at 3:10:
McConnell: … We didn’t attack Merrick Garland’s background and try to destroy him. We didn’t go on a search and destroy mission. We simply followed the tradition in America, which is that if you have a Senate of a different party than the president, you don’t fill a vacancy created in a presidential election year. That went all the way back to 1888. Schumer himself said 18 months before the end of the Bush tenure that if a vacancy occurred they wouldn’t fill it. So what we did was follow tradition. But we didn’t attack a nominee, and we didn’t go on a search and destroy mission….
Wallace: I have to pick up on something that you said, because maybe I have this wrong, but when you blocked Merrick Garland’s nomination from President Obama, you basically said that we don’t do this in a presidential election year, and that we wait until the election, and then whoever the people choose, they get to pick the Supreme Court nominee. But what you just said now was it’s a question of whether or not it’s the party in control of the Senate is different than the president. The question I guess I’m getting to here is, if Donald Trump were to name somebody in the final year of his first term in 2020, are you saying that you would go ahead with that nomination?
McConnell: Well, I understand your question. And what I told you was what the history of the Senate has been. You have to go back to the 1880 to find the last time a vacancy created in a presidential election year on the Supreme Court was confirmed by a Senate of a different party than the president. That’s the history.
Wallace: If you can’t answer my question, are you saying that if Donald Trump [talk over].
McConnell: The answer to your question is we’ll see if there is a vacancy in 2020.
Wallace: But you’re not ruling out the possibility since you’re the Republican majority leader and there’s a Republican president, that you would go for and push the nomination of a Trump nominee in the election year.
McConnell: What I’m telling you is the history is you have to go back to 1880 to find the last time a Senate controlled by a party different from the president filled a vacancy on the Supreme Court that was created in the middle of a presidential election year. That’s been the history.
(Added) Fox News has now tweeted out the clip:
[email protected]: We didn’t attack Merrick Garland’s background and try to destroy him. We simply followed the tradition in America, which is that if you have a Senate of a different party than the president, you don’t fill a vacancy created in a presidential year. pic.twitter.com/u1jm36EEbC
— FoxNewsSunday (@FoxNewsSunday) October 7, 2018
People will now pour over McConnell’s comments on the “Biden Rule” to find an inconsistency.
While I haven’t searched exhaustively, it does appear that previously McConnell has left himself a political out by saying that if the shoe were on the other foot in 2016, and there were a Republican president and Democrat Senate, Senate Democrats would not have voted on a Republican nominee.
Expect heads to explode with claims McConnell has moved the goalposts.
This could become critical should Ruth Bader Ginsburg retire or otherwise leave the court in Trump’s last year. She seems to have signaled a desire to hang on past Trump’s first term, but she would be in her mid-80s at such time. Justice Breyer is the second oldest Justice, so there’s a real possibility that in the next two years one of them would leave the bench, creating an election year vacancy.
Whether a Republican Senate would move forward with a Trump nominee in 2020 might depend on whether Republicans pick up more Senate seats in 2018. If Republicans lose control, it’s not an issue. Democrats will block any Trump nominee for two years. If Republicans still only have a one seat majority, it’s likely at least two Republicans would defect from an election year confirmation. But if Republicans pick up seats in 2018, and have a 4 or 5 seat majority, an election year confirmation could happen.DONATE
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