The Corner

Law & the Courts

The ‘Biden Rule’ and the ‘McConnell Rule’ are Distractions

Senate Majority Leader Mitch McConnell (Reuters)

There’s a lot of chatter about “The McConnell Rule.” There shouldn’t be, because it’s immaterial. The Senate gets to decide what to do with judicial nominations; everything else is just shouting. In 2016, the Senate was controlled by Republicans. A Democratic president sent that Senate a nomination it didn’t like, and that Senate decided not to act on it. Because that president had a track record of nominating judges that the Senate majority disliked, the Senate decided to not act on any nominees until the election. This decision was dressed up by Mitch McConnell as “the Biden Rule.” We can argue over whether that was a good thing, and I did at the time (I was against it, and wanted hearings and then the swift rejection of anyone who wasn’t an originalist). But beneath the rhetorical clothing there was a clear and important message: The Senate gets to decide who sits on the Supreme Court. In this area, it has an absolute right to say “no,” and it can do so according to whatever rules and procedures it sets for itself.

In 2018, the Senate still gets to decide. Now that Justice Kennedy has retired, the Senate, which is still run by Republicans, will be sent a nominee. If it likes that nominee, it’ll vote to seat him. If it doesn’t, it will either vote “nay,” ignore the proposal completely, or suggest another. The Senate gets to decide what to do with judicial nominations. Everything else is just shouting.

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