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There’s no ‘Biden Rule’ in the constitution

Empower Wisconsin | Sept 22, 2020 

By CJ Szafir, Institute for Reforming Government 

There’s no sugarcoating that the vacancy on the U.S. Supreme Court from the death of Justice Ruth Bader Ginsburg comes at a turbulent time in a turbulent year. With emotions running so high, people would be wise to start with the basics of our federal government structure.  

First, in 2016, Donald J. Trump won the presidency, and in 2018, voters across the country were clear that they still wanted a Republican-controlled Senate. This means that — wait for it — the composition of the presidency and Senate will not change until January 2021, at the earliest. As such, in our republican form of government, these lawmakers have an obligation to the people who put them into office to fulfill their duties. This includes confirming judges.    

But what are lawmakers’ duties for fulfilling a vacancy during an election year?  Politicians will frequently invoke the “Biden Rule” and “McConnell Rule” and of course the vacancy left by the late Justice Antonin Scalia in 2016. 

But there’s only one set of parameters binding lawmakers: the United States Constitution. And, to paraphrase, there are two players when it comes to appointments to the judiciary: the president nominates and the U.S. Senate decides to confirm or not (with “advice and consent”). 

Throughout American history, the interaction of these two players has varied depending if there is divided government. Dan McLaughlin at National Review analyzed all the election year vacancies for the Supreme Court and concluded: 

“Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic.”

Knowing all this helps explain 2016 and likely 2020.

In 2016, President Barack Obama performed his constitutional obligation in nominating Judge Merrick Garland to replace the late Justice Scalia. Majority Leader McConnell responded by deciding not to hold a vote on the appointment. This was divided government in an election year, requiring the election to decide the dispute.  

In contrast, in 2020, President Donald Trump will make an appointment and McConnell will proceed with it. As McLaughlin would say, there is no dispute for voters to resolve — unlike 2016. 

Let’s remember the adage from the Obama administration: “elections have consequences.” It should not be a shocker to the media or liberal activists that a Republican-controlled U.S. Senate wants to confirm judicial nominees who have fidelity to the text of the Constitution and rule of law. McConnell, during his time, has acted consistently in pursuing these goals. The same can be said for Wisconsin U.S. Sen. Ron Johnson.  

This is really about President Trump and Majority Leader McConnell remaking the federal judiciary. To date, more than one out of every five federal judges is a Trump appointment, which includes more than 53 judges to the court of appeals (including improving the infamously liberal 9th Circuit) and 144 to the district courts (including the recently confirmed U.S. District Court Judge Brett Ludwig to the Eastern District of Wisconsin).  

And in the highest court of the land, a third appointment will enable Trump in one term to appoint one-third of the Supreme Court. This would be a staggering achievement.  

Would this be within the parameters set forth in the Constitution? Absolutely.  Is it consistent with past practice when both parties control the presidency and Senate?  Yes. Would it be fair?  It certainly is to the people who elected President Trump and a Republican-controlled Senate and want judges who believe in the text of the Constitution. 

CJ Szafir @cjszafir is president of the Institute for Reforming Government, a think tank based in Madison, Wis. dedicated to advancing free market, limited government, and education reform policies. To sign up for updates on their work, please go here. 

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