McConnell: Maybe the 'Biden Rule' Won't Apply if a SCOTUS Vacancy Arises in 2020

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Posted: Oct 10, 2018 10:25 AM
McConnell: Maybe the 'Biden Rule' Won't Apply if a SCOTUS Vacancy Arises in 2020

Here's an important leftover from earlier in the week that's absolutely worth circling back to highlight, given what just went down in the bare-knuckled fight over Justice Kavanaugh.  Remember the 'Biden Rule'?  Back in 2016, when Justice Antonin Scalia died, President Obama nominated Judge Merrick Garland to replace Scalia on the High Court.  Republicans, led by Mitch McConnell, declined to consider the nomination, opting instead to hold the seat open until after the presidential election.  It was a major gamble, but it paid off in a big way when President Trump won an upset victory that fall.  To justify their decision, the GOP pointed to comments from then-Senator Joe Biden in 1992, as well as Chuck Schumer in 2007; each Democrat had laid out a vision to thwart a Republican president from filling a potential SCOTUS vacancy in a presidential election year. 

As fate would have it, neither Biden nor Schumer ever had the opportunity to deploy their telegraphed tactics because no openings presented themselves those years.  But considering their party's long history of hardball tactics and unilateral power grabs on this front, it's a very safe bet that they would have done so if afforded the chance. Republicans repeatedly invoked Biden and Schumer's exhortations two years ago, presenting them as the relevant standard by which they'd handle the Scalia vacancy.  In doing so, they scored a major win, finally operating with Democrat-style ruthlessness.  But what if the tables turn?  

What would happen if a new vacancy were to crop up in 2020 -- particularly if Republicans control both the nomination and confirmation sides of the equation?  Would they still adhere to the Biden/Schumer/McConnell 'Rule'?  Lindsey Graham was asked that exact question recently, and he said yes.  But McConnell has been a clear-eyed gladiator in these high-stakes battles.  Would he really risk ceding a Supreme Court seat if he could realistically avoid it?  Eh, maybe not:

"When you blocked Merrick Garland's nomination from President Obama, you basically said that we don't do this in a presidential election year and that we wait until the election and then whoever the people choose, they get to pick the Supreme Court nominee. But what you just said now, is it's a question of whether or not the party in control of the Senate is different than the president. The question I guess I'm getting to is, if Donald Trump were to name somebody in the final year of his first term in 2020, are you saying that you would go ahead with that nomination?" Wallace asked. "I understand your question. And what I told you is what the history of the Senate has been. You have to go back to 1880 to find the last time a vacancy created in a presidential election year on the Supreme Court was confirmed by a Senate of a different party than the president," McConnell responded.

When Fox News Sunday anchor Chris Wallace followed-up with a point blank question, McConnell demurred. "We will see if there's a vacancy in 2020," he said.  That sounds like some very carefully-phrased hedging from Cocaine Mitch, who takes pains not to foreclose the possibility that a hypothetical Republican Senate majority would move to fill a hypothetical SCOTUS opening in 2020.  I asked Senate Judiciary Committee member Mike Lee about this issue on Benson & Harf last evening, and he sided with McConnell.  Two thoughts on this possibility: 

(1) There is no clean, principled way to defend confirming a Trump nominee in 2020 based on McConnell's 2016 reasoning.  You can't seamlessly transition from "the voters must decide who gets to nominate the next justice" to "just kidding, in this case, we'll decide."  The closest one might get to concocting anything resembling a reasonable defense is that the American people elected a Republican Senate in the 2014 landslide, which dealt a clear rebuke to Obama and explicitly empowered the opposition party at the time.  By contrast, if voters return Republicans to a Senate majority in November, that could be cited as a reason to move forward with a 2020 confirmation effort.  In essence, in the two most recent cycles, voters would have chosen a Republican president and a Republican Senate -- then chose to keep the Senate GOP at the helm, after a flurry of judicial confirmations.  Those electoral outcomes could be plausibly framed as an endorsement or a mandate.  That's not exactly an airtight argument, and may be a stretch, but it's something.

(2) Truth be told, the applicable reasoning may actually be, 'what would Democrats do?'  As I alluded to earlier, decades of recent history offer a very clear guide as to the Democratic Party's capacity to engage in ends-justify-the-means politics, under which they've unapologetically pursued any and all paths to gain a partisan advantage in the judicial wars.  Their strategists and some elected officials once again tipped their hand during the Kavanaugh imbroglio.  They play for keeps.  In light of how everything has played out since at least Robert Bork, does anybody -- anybody -- believe that a Democratic Senate majority would ever allow some fleeting 'standard' to prevent them from filling a SCOTUS opening with a Democrat in the White House?  I absolutely do not.  Not for a nanosecond.  It looks like McConnell agrees and is prepared to act accordingly, if faced with that choice.  

The question is, would his caucus be up for it?  Graham has already paid public homage to the Biden Rule, and figures like Susan Collins (who urged for hearings and a vote on Garland) and Lisa Murkowski might not be able to stomach another pitched brawl during which the Democrats and their media allies would scream at top volume about the Garland episode.  It's impossible to foresee how a completely hypothetical scenario like this might shake out, but I'm confident of one thing: If McConnell is plotting to throw another high hard one at Democrats, he'll need as many Republican Senators on his team as possible.  November presents his party with a major opportunity to expand their Senate ranks, even if the House goes the other way.  Voters who live in Arizona, Indiana, Florida, Missouri, Montana, Nevada, North Dakota, Tennessee, Texas, or West Virginia must realize how high the stakes are.  I'll leave you with some (still preliminary) numbers that may reflect the trend we've been tracking for the last week-plus: