Time to Apply the McConnell Rule

In 2016, Mitch McConnell declined to give Judge Merrick Garland even a hearing, much less a vote. According to him at the time it was an election year and “only” nine months before the people could weigh in with their votes. Fast forward to 2020 and here we are with the election less than two months away. We should apply that McConnell Rule again and let the choice of the people make that SCOTUS appointment AFTER the election.

Of course, that is not going to happen. McConnell is already signaling that his rule will not be applied and Trump is indicating an appointment will be made very soon. If the seat is filled in this way and the Senate does fails to stop it, then there is no legal, moral, ethical or political reason for the new Democratic Congress not to reorganize the Supreme Court as it has the power to do. Nine seats are too few for all the important work it does. Fifteen would be more suitable. The Republicans will cry “Foul!” Let them. They threw out the rules and established that it is raw power that counts when Democrats cried “Foul!” in 2016. What goes around, comes around.

As an aside, this rushed appointment looks like a no-win for Trump. If he does not appoint some semi-rabid ideologue, his base will be very unhappy and lose interest in turning out. If he does satisfy them, he will be handing yet another strong issue to the Democrats.

33 thoughts on “Time to Apply the McConnell Rule

  1. RE: “We should apply that McConnell Rule again and let the choice of the people make that SCOTUS appointment AFTER the election.”

    Why should we do that? It is not required by the Constitution. Besides, the people who voted for Trump in 2016 on the basis of his campaign promises with respect to court vacancies are entitled to expect him to continue fulfilling those promises.

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    1. With all due respect, your formulation was ignored when “the people who voted for [Obama in 2012] on the basis of his campaign promises with respect to court vacancies are entitled to expect him to continue fulfilling those promises.”

      Please explain, why are people who voted for Trump are “entitled” to have their wishes carried out but people who voted for Obama were not? Something to do with “real Americans” maybe?

      We “should” do follow the McConnell rule as a step back towards the time of comity and compromise which served us so well until people like Newt Gingrich, Mitch McConnell and Donald Trump found it useful to demonize their political opponents. That is why we “should.”

      But as I said above, I do not expect that we will. And that is why I will urge the coming Democratic Congress to undo the GOP exercise of raw power over the Court by exercising some of their own.

      As a reminder, the Constitution says nothing about the size or composition of the Supreme Court nor the tenure of Justices. That is left entirely up to Congress. There is nothing sacred about having nine Justices. The first SCOTUS had six.

      https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about#:~:text=Article%20III%2C%20Section%20I%20states,decide%20how%20to%20organize%20it.

      Liked by 1 person

      1. RE: “your formulation was ignored when ‘the people who voted for [Obama in 2012] on the basis of his campaign promises with respect to court vacancies are entitled to expect him to continue fulfilling those promises.'”

        Nope. The people who voted for Obama and those who voted for the Senate in 2012 were of different parties. Also, Obama made his nomination in violation of the rule you apparently want to Trump to follow.

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        1. Mr. Roberts, your response is milk out the nose funny. It really is.

          “Obama made his nomination in violation of the rule you apparently want to Trump to follow.”

          The “rule” did not exist when Obama made his routine and middle of the road nomination of one of the most respected Judges in the federal court system. McConnell pulled it out of his ass AFTER the nomination was made. Duh!

          Your explanation of why the people who voted for Obama do not deserve to have their wishes honored but Trump voters do makes zero sense. But, of course, it was a trick question. There is no possible good answer.

          Liked by 1 person

        2. RE: “The ‘rule’ did not exist when Obama made his routine and middle of the road nomination…”

          Doesn’t matter. You are proposing the rule as a current principle by which — according to you — we can understand past events. Only, the rule doesn’t apply to Obama, since he broke it, which you failed to notice.

          RE: “Your explanation of why the people who voted for Obama do not deserve to have their wishes honored but Trump voters do makes zero sense.”

          Not to you, obviously, but then you are promoting an inconsistent notion. Obama’s voters had their wishes honored; Obama named his nominee. The Senate was under no obligation to approve it, because the Senate was not elected by Obama’s voters.

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          1. RE: “If someone has the raw power they can do what they want.”

            Don’t be ridiculous. The Constitution allows a president to nominate a judge or justice anytime he wishes while in office. It also allows the Senate to act on the nomination, or not, as it sees fit..

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          2. The point is, Mr. Roberts, that the Senate did NOT act on the appointment of Judge Garland. There was no hearing and no vote? Why? So that Republicans would not have to be accountable to the people for their votes to refuse the appointment to an eminently qualified jurist.

            That is NOT the way it should work under the Constitution and in hindsight, in the absence of such a vote, President Obama should have sent Garland to show up to work on the Court and forced one. The principle in law is that silence indicates consent.

            In short, the GOP exercised their raw power to skirt the Constitution and nullify the choice of the people to have Obama choose the Justices during his term in office. They have the raw power – maybe – to ignore that precedent and force through another ideologue Justice days before Trump is removed from office, but there will be a political price to pay and, the new Congress will then be at liberty – legally and politically – to exercise its raw power to set things right.

            Liked by 2 people

    2. Entitlement is one thing, but as I posted, there seems to at least 4 Senators with some semblance of integrity and that is enough to squelch a rush to replace Justice Ginsburg.

      What is interesting is that the “urgency” by McConnell (is the dear departed even cold yet?) is indicative of a huge lack of confidence in the president’s re-election. Or even the ability of the GOP to hold on to the Senate.

      Had Trump come through with a good healthcare plan as promised he might be in much better shape. SCOTUS appointments, though important, are really critical to single issue voters.

      Liked by 1 person

      1. RE: “What is interesting is that the “urgency” by McConnell (is the dear departed even cold yet?) is indicative of a huge lack of confidence in the president’s re-election.”

        Pure, unsubstantiated mind reading.

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        1. Strange. You see an awful lot of “mind reading” when other people think about the evidence and draw rational conclusions. In this case, when the body is not yet cold, the urgency displayed by McConnell is palpable. And clearly if there was confidence that Trump will be re-elected there would be no need for urgency. No mind reading. Just thinking. Try it.

          Liked by 1 person

        1. “ Panic and hypocrisy are a scary combination.”

          Not if you are the opponent. Just let the Trump party keep talking. Better than campaign videos…and cheaper too.

          Liked by 2 people

      2. The urgency is not McConnell’s fault.

        It is not President Trump’s, nor Senator McConnell’s, fault that we are having this come up just weeks before the election.

        Justice Ginsburg had to know, when she was hospitalized last Spring, that she would not be able to fully participate in the coming term of the Supreme Court which begins the first Monday in October and lasts until next June. She should have resigned then, or at the end of last year’s term in June, to leave time for an orderly transition, as previous Justices have done.

        Instead, for partisan reasons, she held on to the seat trying to run out the clock for Trump to appoint a replacement. This was a sad way to end an impressive career, but it is her fault, not Trump’s, that this is coming up now with only weeks before the election.

        In any case, there is nothing unusual going on. Appointments have been made in election years, and even in the lame duck sessions after an election from the beginning.

        link

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        1. “In any case, there is nothing unusual going on. Appointments have been made in election years, and even in the lame duck sessions after an election from the beginning.”

          Very different tune from the one you were singing in 2016. And that was in March, not September.

          Trump and the GOP have the power to do what they want at the moment. But, there will be a stiff political penalty no matter what they do.

          You describe RBG as hanging on for “partisan” reasons. That is a bit harsh. She clearly tried to hang but it was based on her deep and long-held belief about the Constitution, the law and human rights. If the GOP were not so blatantly hyper-partisan in their packing the courts with activist judges she might not have had to do that.

          BTW, she might have retired in 2016 or earlier except for the way President Obama’s appointments were handled in the Senate.

          Liked by 2 people

        2. McConnell is playing for keeps, no question.

          He and the administration could have at least waited until Ginsburg was in the ground, another week or two, before dancing gleefully on her as yet to be dug gravesite.

          I don’t think the appointment will pass the Senate. There are at least 2 confirmed Republicans that will wait, Murkowski and Collins. And two others, Graham and Grassley have both voiced opposition to an appointment before election.

          If Kelly wins in Arizona, which looks likely, he will be seated November 30.

          It looks to me like a handful of Senators are hedging their bets that Biden will win and that the Senate will be Democratic. Remember, that Biden was a Senator and has close ties to a lot of them on both sides of the aisle.

          This is actually a fascinating slice of American history in the making.

          Liked by 2 people

          1. …”Graham and Grassley have both voiced opposition to an appointment before election.”

            Well, they’ve already flipped their words. In 2018, Graham said use my words against me. Well, the voters in SC should remember that.

            Liked by 1 person

          2. Yeah, I saw that. I was afraid that the usual BS from the wimps in the GOP would prevail.

            So we need two more Republican Senators to flip for integrity. Tough call, but doable.

            “But they say they found a pillow on his face, which is a pretty unusual place to find a pillow.” Trump hinting at Michael Savage’s assertion that Scalia was murdered.

            https://thehill.com/blogs/ballot-box/presidential-races/donald-trump-justice-antonin-scalia-murdered-pillow-conspiracy-theory

            Did the regime change out Justice Ginsburg’s medication?

            “Everyone knows that”, “I’ve been told”. 😇

            Liked by 2 people

          3. …”the usual BS from the wimps in the GOP”…

            Rumor has that there is a closet in the residence of the WH that is full of Republican testicles. And in the bunker is all of the spinal columns. 👼

            Liked by 1 person

          4. Closet full? Not so much.

            A shoebox, size 4, would be sufficient space to hold the remaining testicular detritus and vertebrae.

            Loafers perhaps.

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        3. “Justice Ginsburg had to know, when she was hospitalized last Spring, that she would not be able to fully participate in the coming term of the Supreme Court”…

          HAD to know? She beat cancer 3 different times previously and was a fighter to the end. But this time she HAD to know? Mr. Roberts accuses others of mind reading. Guess it is my turn to “j’acuse.”

          Liked by 1 person

          1. My brother is an attorney. he brought me into a discussion with a number of other attorneys, one of whom was sworn into the SCOTUS bar last year. In this last term, Justice Thomas carried Justice Ginsburg into and out of the courtroom.

            Since photography was not allowed, and out of respect to her, her frailty has been kept relatively quiet, but yes, she knew.

            She put up one hell of a fight, and that is to be respected, but she should have stepped down at the end of last term.

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          2. She was certainly frail physically and has been for a number of years. But her mind remained sharp until the end. I am certain that she lived in hope – as most do – and in any case, saw hanging on until next year as a patriotic duty. She was not wrong.

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    1. I was fully agreeing with you till you said “. . . and far, far worse than Trump.” He might be far, far smarter than Trump, but not worse. [In my humblest of opinions, of course.]

      Liked by 2 people

  2. When all is said and done?
    Article 2, Section 2, Clause 2 of the U.S. Constitution gives the U.S. Senate the authority to approve/disapprove the President’s nominations for Executive and Judicial branch positions.

    Back in 2016? I consistently posted on many of the blogs and sites I followed or subscribed to (the Virginian-Pilot was one them) that it was a bunch of malarkey when Senate Leader Mitch McConnell pulled a trump card out of history’s nether regions (the Biden Rule) with Neil Gorsuch.

    The Republicans wanted to wait and the Democrats to proceed with an up/down vote.

    Here we are 4 years later watching history repeat itself. Both partiers flipping and flopping, struggling to reach legitimate reasons…and loading my email spam folder begging me to give them money.

    Liked by 1 person

    1. Yep.

      I would add, though, that the Constitution gives the Senate the authority AND the responsibility to approve/disapprove of the President’s appointments. With regard to Garland, the Republicans punted on that responsibility for crass political reasons. If they did not want Garland they could have given him a hearing and then voted him down. But then they would have to answer to the voters for their individual votes.

      I, for one, recognize that Trump has the authority and the GOP has the power to approve anyone they want. But I would note that Democrats handicap themselves by following the rules and precedents in the face of a party that doesn’t.

      No matter, I have a high degree of confidence that – as always – the GOP has gone too far and the voters will set things right in less than two months. It will then be time for the Democrats to play the same kind of hardball and exercise the authority the Constitution gives the Congress to reorganize the SCOTUS.

      Liked by 2 people

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