Nuclear Mitch might alter the deal. Pray he doesn’t alter it any further.
The Senate Majority Leader, Mitch McConnell, is willing to
throw away the memory of Merrick Garland in order to drop one more nuke.
CNN reports that “Senate Majority Leader Mitch McConnell said Tuesday if a Supreme Court vacancy occurs during next year’s presidential election, he would work to confirm a nominee appointed by President Donald Trump.”
As you may remember, President Obama nominated Merrick
Garland to take Justice Scalia’s seat on the Supreme Court. In an event that brought McConnell much flak
from the left and renewed support from the right, McConnell refused to schedule
a hearing for Garland. Instead, Mitch
argued that any decision regarding the Supreme Court ought to come from the
next president since it was an election year.
Keep in mind that this decision was made when Hillary had a 97% chance
of winning the presidency.
The McConnell rule is that the senate should not confirm
justices in a presidential election year when the current president is
The Biden rule is that the senate should not confirm justices in any presidential election year.
Some even wanted to see the McConnell rule apply to midterm
elections! As we saw in 2018 with now Justice Kavanaugh.
These three considerations are being invoked today with Chuck Schumer calling McConnell a hypocrite.
Back in June of 2018, The
Hill ran an interesting opinion piece regarding the McConnell rule and the
legal weight it has. It is completely
off base since it ascribes due process rights to the senate minority and
confuses customs with constitutional constraints on legislative power, but it
sums up the outrage well.
So let’s look at two issues that are quite simply to understand. They should assist us in dialing back the
fits of rage directed at the majority leader for his apparent hypocrisy.
The first issue is that there is a distinction between an election year where the incumbent can be reelected and one where the incumbent would not be in office to make the post-election appointment. Our own Steve Berman pointed this out on twitter this morning. He said this regarding the CNN article I cited, “Sloppy reporting. There’s a difference between a “lame duck” year of a 2-term president and a re-election year of a first term president.”
The second issue is that the constitution gives the advice and consent power to the senate with no limitations on how that power is exercised. The constitution only specifies a two-thirds vote for treaties, impeachments, and amendments. Unless otherwise specified, a simple majority vote is sufficient and there are certainly no constraints regarding election years. Any rule made is strictly a senate custom. It need not even be codified in any official senate procedures that might fall under Article I. In Federalist 66, Hamilton says this, “It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President.” In Federalist 76, Hamilton describes the infrequent occurrence of the senate opposing a nominee. While it is clear that we have strayed from that, it illuminates a problem with the idea that there are in fact constitutional constraints on the advice and consent power. Hamilton speaks to the general form of the our government and the purposes of having the senate involved in the appointment process. The piece from The Hill wants us to think that there is some due process right bestowed upon the senate when nominations don’t go the way the left wants them to. But to Hamilton’s point, history shows us that republicans have been closer to Hamilton’s vision than democrats have in recent memory. Democrat-appointed judges are confirmed if they are qualified. Republican-appointed judges are confirmed on partisan split votes. Democrats do everything in their power to stop a nomination. Republicans oppose nominees on principle and vote for them anyway. Only when the GOP uses the advice and consent power in a way that disrupts this Democratic advantage are individuals suddenly concerned about the nonexistent constitutional implications.
And let’s just ignore the fact that Senators Harris and
Feinstein think that home-state senators wield the entire advice and consent
power when they object to a judicial nominee from California. The senate majority doing its job is a
constitutional crisis, but that isn’t?
I suppose a simply response to the outrage regarding Nuclear
Mitch can be summed up in a few sentences:
The senate wields the advice and consent power. There are no constitutional restraints on that
power. If you don’t like how it is being
used by the current majority, win the senate back.