The Corner

Law & the Courts

The Biden Rule, the McConnell Rule, and Hardball Politics

I thought Mitch McConnell’s decision to hold the Scalia seat until after the 2016 presidential election was a wholly legitimate (and politically brave) exercise of senatorial power. The fact that Joe Biden had made the exact same argument a few years before was all the precedent McConnell needed to justify the move, though there was ample historical precedent as well. This isn’t to say McConnell was somehow required to keep the seat open, just that it was within the bounds of what’s permissible in the world of hardball politics. Moreover, I’m totally with Charlie on this one: All of the talk of the Biden Rule and the McConnell Rule is a bit silly if you just start from the premise that the Senate is a half of sovereign co-equal branch of government, with the authority to run things as it sees fit.

That said, I completely understand why it infuriates liberals, and I think most conservatives would be equally frustrated and pissed if the shoe had been on the other foot. It’s never fun to watch someone drink your milkshake.

I just don’t sympathize very much. This morning I heard New York Times reporter Jeremy Peters describe a text message he got from a Democratic political consultant who said something like, “This is really bad because the Republicans are so much better at this than we are.” Well, the reason the Republicans are better at it than the Democrats is that the Republicans have to be. Since the borking of Robert Bork, the GOP has had one trial-by-fire in the confirmation process after another, while Democratic appointees have generally had an easy time of it. The GOP has been generally bipartisan and deferential about Democratic nominees while the Democrats have been vicious and conniving, operating on the assumption that they have some greater ownership of the Supreme Court. That builds battle scars and operational experience that comes in handy down the road.

Still, what I find fascinating is the almost dialectical process by which partisans embrace and then expand the standards of their opponents. So, McConnell invokes the “Biden Rule” about not nominating a Supreme Court justice close to a presidential election. That proposal had been attacked as flimsy and opportunistic by Republicans. Then, when circumstances reversed, McConnell embraced the Biden Rule and enforced it for a full eight months. Now, the Democrats want to enforce the McConnell Rule, by saying that it should apply to appointments before a midterm election, which is ridiculous.

McConnell’s whole argument was that the question of the next Supreme Court justice should be put to the voters who were going to decide who would appoint him or her. So, to recap, the Biden Rule was ridiculous according to Republicans until it was vital. The McConnell Rule was not just ridiculous but an affront to all that’s holy, according to Democrats. Indeed, Democrats to this moment claim that Scalia’s/Garland’s seat was outright stolen. Some on the more untethered left often find themselves prattling, like a shirtless dude in a trench coat on a public bench, that any cases decided by Gorsuch are actually illegitimate because of the sinfulness of the McConnell Rule.

But, they insist, the McConnell Rule must now be applied to Kennedy’s seat in the name of justice and decency.

It’s all pretty pathetic when you think about it.

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