July 23, 2018

Whose Rule Is Whose?

Dr. Malcolm Cross

Political junkies of all persuasions should be happy that President Trump will soon nominate a candidate for the United States Supreme Court to fill the vacancy created when Justice Anthony Kennedy formally retires at the end of this month.  No matter who’s nominated and what action the Senate will ultimately take, we’ll be treated to a nice long summer of high-minded debate, endless speculation on the “future direction of the Court,” and low attempts at character assassination directed at the nominee, his supporters, and his opponents.  This new episode in American political history will provide many issues for many pundits to discuss for well into the foreseeable future.

Right now, the main issue under discussion is the propriety of a presidential appointment to the Supreme Court in an election year.  Democrats say President Trump should nominate nobody until after the fall midterm election, wherein a third of the seats in the United States Senate and all the seats in the House of Representatives in the U. S. House of Representatives are up for grabs.  They call their dictate “The McConnell Rule,” so-named for Senate Republican Leader Mitch McConnell, who allegedly said Presidents shouldn’t nominate Supreme Court Justices in an election year.

Actually, the rule should be called—and has been called—the “Biden Rule” after Joe Biden who, in 1992 when he was a senator from Delaware and chair of the Senate Judiciary Committee, which reviews judicial appointments before the full Senate takes action, said the President should not make Supreme Court appointments in a presidential election year.  It was Biden’s opinion which McConnell cited to block the Senate from voting on Merrick Garland, President Obama’s nominee to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia.  McConnell argued that the task of replacing Scalia should be left to a newly-elected incoming president, not a lame duck on the way out.  Whether Senators up for reelection should be able to vote on so important a matter was never the issue.

Whether either McConnell or Senate Democrats would have allowed the Senate to vote on a nominee presented by a Republican president in 2016 is an interesting question, but somewhat beside the point here.  More relevant is how McConnell and Senate Republicans responded to the last Supreme Court nominee to be presented in a midterm election year.

In 2010 President Obama nominated fellow Democrat Elena Kagan, a top official in the Obama Justice Department to the Supreme Court.  She was confirmed by a 63-37 vote in the United States Senate.  Both independents voted to confirm her, as did 56 of the 57 Democrats in the Senate at that time.  Of the 41 Republicans, 36 voted against her.

But what’s important here is not only did 5 Republican Senators vote to confirm Justice Kagan—more than the number of Democrats who voted to confirm Justice Neil Gorsuch– but that Senator McConnell supported a vote in a midterm election year.  With 41 Senate Republicans at a time when filibusters on judicial nominations were still allowed and the vote of 60 Senators was necessary to overcome a filibuster, McConnell could have blocked a vote on Kagan’s nomination.  But he allowed it to proceed, and now she’s on the court.

So if the Democrats in the Senate really want to play by the customs, traditions, precedents, and rules, they should stop talking about a “McConnell Rule.”  They should admit it’s the “Biden Rule,” and it only applies to presidential appointments to the Supreme Court in presidential election years.  They should let the vote on President Trump’s nominee take place just as Mitch McConnell gave the go-ahead for the vote on Kagan to take place the last time a Supreme Court vacancy occurred during a midterm presidential election.

But what if another Supreme Court vacancy is created in 2020, our next presidential election year, and President trump tries to fill it?  Like Obama in 2016, he will have the right to nominate someone.  And like McConnell in 2016, the Democrats will have the right to try to block it.  Republicans may love, and Democrats may hate, the Biden Rule now, but politics is funny:   Someday the shoe may be on the other foot, and Democrats will have more cause to celebrate, and Republicans to fume, at the rules they invent to advance their respective political goals.


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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