We recently observed the passing of an important temporal benchmark on the judicial-appointments calendar of Republican U.S. senators — Feb. 13. It is a benchmark that has in the past and may in the future define how our country is governed. Four years ago, on Feb. 13, 2016, Justice Antonin Scalia died. Justice Scalia’s passing created a vacancy on the U.S. Supreme Court. President Barack Obama, fulfilling his constitutional duty, nominated a distinguished federal judge, Merrick Garland, to replace Scalia.
Obama forwarded Judge Garland’s name to the Senate for its “advice and consent.” Republican senators, almost to a person, united behind their fiercely partisan leader Mitch McConnell and abrogated their sworn duty under the Constitution to consider the nomination. They denied Garland a hearing. Many observers believed that Garland’s credentials were so stellar that the Republican senators deemed it too risky to their own reputation to grant Garland a public hearing then reject his appointment on its merits.
To support their position, McConnell and his Republican colleagues crafted what they called the “Biden rule” as a contrivance to justify denying Garland a hearing. Under this “rule,” any nomination to fill a vacancy that occurs on the Supreme Court after a certain temporal point during a presidential election year should be held over and made by whoever is elected president that November. No such rule actually existed. It had no antecedent. Nevertheless, McConnell and his Republican colleagues, for partisan political reasons, decided that a vacancy created after Feb. 13, 2016, was too close to the next presidential election to be filled by the incumbent president. Citizens who believe in our form of civil democracy should hope — indeed, have a right to expect — that in 2020 the Republican senators will be consistent. Accordingly, if a Supreme Court vacancy occurs between now and the end of 2020, we should expect that the Senate will defer, as it did in 2016, to the person who wins the next election. Unfortunately, it appears that this is not likely to be the case.
As part of their assault on established practices, procedures and institutions of our democracy, McConnell and President Donald Trump have indicated that what was deemed to be a Senate “rule” in 2016 will not be a rule in 2020. McConnell said as much when he, once again putting his lack of integrity on public display, announced that any 2020 Supreme Court vacancy would be filled during Trump’s term in office. Concerned observers could only stand by and look on with dismay as McConnell made this pronouncement with the self-satisfied grin of a person who knows he just pulled off a major political power coup. The problem is that the coup he masterminded denied President Obama the power and authority given to him by a majority of American voters. We should expect better from our leaders. It is no wonder that the public’s opinion of the U.S. Senate is so low.
The question going forward: What can a concerned citizen do to remedy this situation? Unfortunately, not much in the short term, other than to hope and pray that no Supreme Court vacancy occurs in 2020. In the longer term, every concerned citizen must exercise his or her sovereignty by supporting and voting for candidates for public office who will work to end this type of chicanery. They need to comprehend that there is nothing remotely great about what McConnell and Trump are doing to our beloved country and its hallowed institutions when they condone practices like this that undermine the basic tenets and guarantees of our Constitution.
Paul H. Anderson, now retired, was a Minnesota Supreme Court justice from 1994 to 2013.