Justice Anthony M. Kennedy's retirement decision is only a few hours old, and it has already fueled a barrage of hypocrisy charges. Senate GOP leaders say they will press forward with confirming a new justice this fall, and Democrats are accusing them of going back on what they said in 2016, when they blocked Merrick Garland's nomination because of the impending election.
Practically speaking, this is really just shouting — Republicans, after all, have the majority and can hold hearings whenever they want — but it's worth evaluating how consistent they are being.
Here's what we can say: Democrats are protesting too much.
Senate Majority Leader Charles E. Schumer (D-N.Y.) made the case in floor remarks shortly after Kennedy's retirement: “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.”
Sen. Dianne Feinstein (D-Calif.) added:
The GOP did argue in 2016 that a Supreme Court vacancy shouldn't be filled until after voters had their say in the coming election, but their argument was about who gets to nominate the justice — not who gets to confirm him or her. It was clearly about presidential election years, not midterms.
Here's Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), immediately after Garland was nominated: “A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.”
Here's what Senate Majority Leader Mitch McConnell (R-Ky.) said: “I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.”
Here's another example:
And while making the case on “Fox News Sunday” in March 2016, McConnell repeatedly cited the presidential election year, not just an election year: “We're following the Biden rule. And Biden was chairman of the Judiciary Committee in 1992, in a presidential election year, he said the Senate should not act on filling a Supreme Court vacancy if it had occurred that year. . . . So, all we're doing, Chris, is following a long-standing tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.”
Grassley even said recently that, in his post atop the Judiciary Committee, he would advocate that any Supreme Court vacancies in 2020 (i.e. during the next presidential election) be left vacant because of the so-called "Biden rule."
The GOP's invocation of the “Biden rule” was more than flawed, to be sure. (Biden's comments came much later in the election cycle, for instance, and he didn't say the confirmation hearings should wait until the president was sworn in but, instead, just until after the election — in the lame-duck period when he was still in office.) And its move to block Garland's nomination was the definition of brazen.
But just because Republicans misconstrued what Biden said in 1992 doesn't give Democrats license to misconstrue what Republicans said in 2016. And whatever you think of the justification offered to block Garland, it was clearly in reference to presidential election years, not midterms.
This is grasping at straws, in the truest sense.