And when confronted for the first time in decades by a vacancy on the Supreme Court during a presidential election year McConnell invoked the “Biden Rule.” In a June 1992 speech, then-Judiciary Committee chairman Joe Biden said, “It is my view that if a Supreme Court justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President [George H.W.] Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed.”
The “Biden rule” was the Senate equivalent of Supreme Court “dicta,” but McConnell’s “no hearings, no votes” stance in 2016 is an actual precedent. But it is a precedent limited on its facts to vacancies occurring because of a sudden death of a justice in a presidential election year.
The left, clearly hoping for some sort of an upset in the Senate races in the fall, wants to invoke the McConnell precedent to try to generate public opposition to moving forward with a nominee to fill Justice Anthony M. Kennedy’s seat this summer and early fall. It won’t work. The president will quickly nominate a Kennedy replacement. Barring some unforeseen miss in the background check, the nominee will be confirmed, and probably with votes to spare given how many Senate Democrats are facing stiff reelection in states carried by President Trump. Some Democrats, facing the certainty of confirmation, will side with the nominee (and their states’ voters) and try to hang on to their jobs.
The process toward “the majority rules” rules began with the “Borking” of Robert Bork in 1987, when politics entered the confirmation process. That process became even more embittered in the Clarence Thomas hearings. In the subsequent two decades, Both parties escalated the use of filibustering and slow-walking nominations. Senate Democrats’ blockade of key nominees in 2001 and 2002 when they held the majority and their serial filibusters of nominees in 2003 and 2004 led to the first threat of the “nuclear option” by then Majority Leader Bill Frist that was averted by the “Gang of 14.” An uneasy peace descended on the Supreme Court nomination process, and though hearings and votes on Justice Samuel A. Alito Jr. were particularly heated, the nominations of Justices Sonia Sotomayor and Elena Kagan proceeded peacefully.
Then came “the Reid Rule.” Clearly, Reid was counting on holding the Senate through 2016 at least, and perhaps beyond. But suddenly the sharpest of double-edged swords was in the GOP’s hands when Republicans took back the Senate in 2014 and with that, control of the confirmation process. They paid back Reid with interest, slowing nominations to a crawl and in 2016, when McConnell declared even before President Barack Obama nominated Judge Merrick Garland that no nominee, whatever his or her background, would receive a hearing or a vote.
The people voted. Trump won. Justice Gorsuch filled the Scalia seat, and a Trump nominee will fill the Kennedy seat.
Where we have ended up in 2018 is actually where the framers began when they declared in Article II, Section 2 that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” The Senate is a majoritarian body now on all nominations and will likely stay that way. If an originalist majority settles in for a long run on the Supreme Court, everyone can send thank-you notes to Reid.