Though it is not openly discussed, many politicians and pundits keep that question on hold – but not completely out of mind. It is not discussed because there is no current vacancy on the high court – and even though Justice Ruth Bader Ginsberg is advanced in years (86) and has been the victim of extremely serious health issues, crepe-hanging is unseemly.
In pointing the fickle finger of fate at the Court’s oldest member is to forget that the finger of fate is fickle. Stephen Breyer is also an octogenarian. Justice Antonin Scalia was 79, and in seemingly fine health, when he suddenly died during a hunting trip to Texas.
It is also possible that a vacancy will occur because of a resignation – as was the case with the nomination and confirmation of Justice Brett Kavanaugh. If some folks had their way, Kavanaugh would be removed by impeachment. If you play the odds, you can safely bet that there will not be a resignation in the next year or so, and that the Kavanaugh impeachment prospect is wishful thinking by extreme political malcontents.
The headline question is not posed out of any wishful thinking or morbid curiosity. It is raised because we are nearing an important time in the calendar – the final year of President Trump’s first(?) term in office before standing for re-election. It is a season in which Supreme Court nominations and confirmations become their most politically contentious.
There is no constitutional rule determining when a President may or may not nominate a person. Nor is there a constitutional limitation on when and how a Senate may confirm said nominee. However, there have been a whole bunch of opinions – often advanced as rules.
As the theory goes, a President should not nominate, nor should the Senate confirm, a nominee in the last year before a presidential election – whether the incumbent is up for re-election or not. It is believed – or at least alleged – that the decision should be left up to the person in office after the presidential election. Proponents of this position believe that the new justice would then best reflect the desire of the people. Not an unreasonable notion.
This point-of-view is generally advanced when the President and the Senate are of opposite political parties. Republicans, in control of the Senate, pointed to that opinion when they refused to confirm President Obama’s final-year nomination of Judge Merritt Garland. Democrats, on the other hand, believe that the opportunity was stolen from Obama purely for political reasons.
While Democrats pointed only to Obama’s constitutional right to nominate a candidate, they overlook the Senates constitutional right to postpone consideration. As to the Democrats’ charge that the action of the Senate was purely political … well, duh!
In a display of political hypocrisy – a mainstay of the profession – Democrats chose to forget what had been called “the Biden Rule.” Yes, it is true. Obama’s very own Vice President, Joe Biden, when serving as chairman of the Senate Judiciary Committee, expressed his opinion that no Supreme Court nominee should be confirmed in the last year of a presidential term. In the case of Garland, Republicans were quick to applaud the wisdom of Biden and his so-called rule.
As chairman of the Senate Judiciary Committee Biden had declared that if a President should make such a nomination, the Senate should not move forward with the nomination until after the election. That was Biden in 1992, when Republican George Bush was President.
Of course, the Republican Senate’s decision to hold the Scalia seat open for the next President was a political action that paid off for Republicans and conservatives – big time. You can bet that had Hillary Clinton won the election, the Republican Senate would have confirmed the more moderate Garland before the Electoral College certified the election. They would not have allowed Clinton to nominate a far more liberal justice – as she would most likely have done.
In holding the seat open during the last year of the Obama administration, Republicans actually reinforced an opinion voiced by Biden. They were invoking the non-existent Bide Rule. So, what will happen if a vacancy should occur in the fourth year of Trump’s term?
Republicans will still control the Senate, and a rule-change now allows Supreme Court justices to be confirmed by a simple majority. The only thing preventing the nomination and confirmation of a justice by Trump and the Republicans is devotion to the Biden Rule.
But wait. It is not a rule. It is, at best, a concept. And when a concept conflicts with constitutional authority and hardball politics, the concept will die on the field of hypocrisy. Yes, hypocrisy.
Should our hypothetical case become a reality – and there is a vacancy in the fourth year – you can bet that Republicans will be coming up with every reason imaginable to put another conservative on the Court. There will be blowback, for sure. There will be partisan outrage. Considering the implication for abortion, there may even be violence in the streets. But in the final analysis, political power – legal and constitutional ability – will win out over sentiment. My bet is that Republicans will face the headwind and seat a new justice regardless of the outcome of the election.
Put this hypothetical analysis on the back burner. It may have no relevance. But … if a vacancy does occur, remember this scenario. And if you think it bad of the Republicans to flip flop all over the place on this issue, keep in mind that the Democrats would do exactly the same thing if they found themselves in the same position. That is the rule of politics.
So, there ‘tis.