What is the “McConnell Rule”?

This appeared in The Millennial Source

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In 2016, McConnell blocked a vote on President Barack Obama’s Supreme Court nominee following the death of Justice Antonin Scalia. At the time, McConnell claimed he was doing so to give voters a chance to decide in that year’s upcoming presidential election. This year, he’s not waiting.

The death of Supreme Court Justice Ruth Bader Ginsburg on September 18 set off an immediate political firestorm. While memorials and words of praise poured in for the liberal hero and highly regarded legal mind, her vacancy on the nation’s highest court garnered just as much attention.

Mere hours after Ginsburg’s death, due to complications from pancreatic cancer, Senate Majority Leader Mitch McConnell made it known he had every intention of holding a confirmation vote for the nominee put forward by President Donald Trump. This was in line with a promise he made on Fox News back in February.

With the presidential election in less than two months, Democrats have called McConnell a hypocrite. In 2016, McConnell blocked a vote on President Barack Obama’s Supreme Court nominee following the death of Justice Antonin Scalia. At the time, McConnell claimed he was doing so to give voters a chance to decide in that year’s upcoming presidential election. This year, he’s not waiting.

McConnell and his supporters have stated there is no inconsistency in their stance. Instead, they insist, there is a distinction between the situation in 2016 and 2020. It is within that distinction that the “McConnell Rule” is established.

Defining the “McConnell Rule”

In McConnell’s statement after Ginsburg’s passing, the Senator recognized the “conclusion of her extraordinary American life.” The first half of the statement praises the former Justice for overcoming many obstacles to achieve remarkable success in the law profession.

It’s in the second half of the statement that McConnell essentially defines his eponymous “rule” for confirming a Supreme Court Justice in an election year.

“Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”

In 2016, the Republicans controlled the Senate while President Obama, a Democrat, occupied the White House. In 2020, both the Senate and the presidency are in the hands of the Republicans. Therefore, according to the McConnell Rule, the American people have given consent for the Senate to vote on Trump’s nominee and waiting for the election isn’t necessary.

Splitting hairs?

Critics of McConnell are not appeased by what they see as his splitting hairs. After all, the voters elected Obama to two four-year terms with the presumption that he would fulfill his presidential duties — including nominating Supreme Court Justices — all eight years he was in office.

On September 21, MSNBC host Chris Hayes tweeted that the real rule is simpler.

“The actual rule mcconnell announced and abided by in 2016 was that republicans won’t confirm a democratic president’s nominees. that’s it. that’s the rule.”

The power to nominate judges to the Supreme Court is given to the president by the Constitution in Article II. The Senate’s role in the nomination process is to provide “advice and consent.” Of the 160 Supreme Court nominations presidents have made in the United States’ history, only 36 have been blocked or rejected.

In the case of Obama’s nominee, Merrick Garland, the Senate didn’t even consider his nomination. McConnell refused to hold hearings.

Will the Senate vote?

For Democrats, there was a hope that shaming Republicans with accusations of hypocrisy might get some senators to withhold their vote. Since the Republicans have 53 of the 100 Senate seats, four Republican senators would have to refuse to vote or vote against the nominee for Trump’s nominee to be blocked. (In the case of 50–50 ties, Vice President Mike Pence would cast the deciding vote.)

Republican Senators Susan Collins and Lisa Murkowski have already expressed their wish that the vote be delayed until after the winner of the November 3 election is known. There was hope among liberals that two other Senators could be persuaded to take the same stance, with particular focus on Senator Mitt Romney.

However, though Romney has shown a willingness to defy Trump — most notably by voting against the president in his impeachment trial — on September 22, Romney confirmed he would support a floor vote on a Trump nominee for the Supreme Court. That all but ended any hopes the Democrats had that enough Republicans could be convinced to stall the process.

In his statement announcing his intention to vote on the president’s nominee, Romney essentially cited the “McConnell Rule”: “The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own.”

Why does the Supreme Court nominee matter?

Among their judicial duties, the nine Supreme Court Justices are responsible for determining the constitutionality of both federal and state laws. Decisions made at the Supreme Court set legal precedents that are then used to either uphold or strike down other laws in the future.

For instance, the legality of abortion was affirmed in 1973 with the decision in Roe v. Wade, which stated that laws prohibiting abortion infringe on “personal liberty protected by the Due Process Clause of the Fourteenth Amendment.”

That decision is the legal bench mark that has kept abortion legal in the decades since, even as conservatives have fought to restrict or abolish the practice altogether. Many state laws limiting abortion access have been struck down by the court. Among the fiercest defenders of legal abortion was Ginsburg.

The passing of Ginsburg, whose health problems have long been the focus of political interest, allows Trump to nominate a conservative judge, thereby cementing a conservative majority of 6–3 on the court. Trump has already nominated two conservatives, Justices Neil Gorsuch and Brett Kavanaugh, to the court in his first term.

Liberals fear that an even stronger conservative majority on the Supreme Court could open the door to overturning the Roe v. Wade decision. There is also concern other liberal legal victories could be overturned, as well, including Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage in the US.

Originally published at https://themilsource.com on September 24, 2020.

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