What’s the McConnell rule?
- The “McConnell rule” refers to the position taken by Senate Majority Leader Mitch McConnell (R-KY) that the Senate need not consider a Supreme Court nominee put forward by a president of the opposite party during a presidential election year.
- The abrupt death of Justice Antonin Scalia on February 13, 2016, created a vacancy which left the Court with four justices appointed by Republicans and four justices appointed by Democrats. The confirmation of a nominee put forward by President Barack Obama would have created the first majority of Democratic-appointed justices on the Supreme Court since 1970, but Republicans controlled 54 Senate seats at the time ― more than enough to block the nomination.
- After Scalia's death, McConnell released a statement which read in part, "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President." On February 22, 2016, McConnell spoke on the floor to say that the “American people are more than equipped to tackle” the question of replacing Scalia, and that the Senate has the right to decline to consider a nomination, particularly under the political circumstances of the moment:
“Of course it’s within the president’s authority to nominate a successor even in this very rare circumstance ― remember that the Senate has not filled a vacancy arising in an election year when there was divided government since 1888, almost 130 years ago ― but we also know that Article II, Section II of the Constitution grants the Senate the right to withhold its consent, as it deems necessary.”
- On March 16, 2016, Obama nominated Judge Merrick Garland to fill the vacancy. The same day, McConnell spoke on the Senate floor and reiterated his position that, “The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next President nominates, whoever that might be.”
- Throughout the debate, McConnell also referred to what he dubbed the “Biden rule” after Vice President Joe Biden. In 1992, was the chairman of the Senate Judiciary Committee and warned President George H.W. Bush against trying to advance a hypothetical election year Supreme Court nomination because it would conflict the Senate Democratic majority’s principles. Biden said on the Senate floor on June 25, 1992, that the vacancy shouldn’t be filled until after the election on November 3, 1992:
“Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention Convention and weeks before the Repulican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.
Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not ― and not ― name a nominee until after the November election is completed...
Some will criticize such a decision and say it was nothing more than an attempt to save a seat on the court in the hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose in the Senate ― to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”
- Ultimately, Senate Republicans didn’t consider Garland’s nomination which prompted the two leading 2016 presidential candidates, Donald Trump and Hillary Clinton, to make the vacancy an important part of the campaign. After Trump’s victory, he appointed Justice Neil Gorsuch to fill the Scalia vacancy, with Gorsuch confirmed on a 54-45 vote after the GOP used the “nuclear option” to bypass a Democratic filibuster.
- The McConnell rule came back into political debate following the death of Supreme Court Justice Ruth Bader Ginsburg on September 18, 2020 ― 46 days before the presidential election November 3, 2020.
- Her death prompted Senate Minority Leader Chuck Schumer (D-NY) to tweet, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
- Majority Leader McConnell announced in a statement that he will forge ahead with filling the vacancy, and explained that the circumstances are different than 2016 because the same party controls the White House and the Senate:
“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. 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. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
- McConnell also sent a “dear colleague” letter to Republican senators to address arguments that confirming a justice in 2020 would violate the precedent set in 2016:
“I want to address briefly two arguments you are likely to hear from those opposing filling the vacancy. The first is that Senate Republicans established a rule in 2016 that the Senate will not fill Supreme Court vacancies in presidential election years. That is not true. We followed the Biden Rule in 2016, which provided that the Senate will not fill Supreme Court vacancies that arise in presidential election years when the presidency and the Senate majority are held by opposing parties. Indeed, as I said beginning in February 2016, you have to go back to 1888 when Grover Cleveland was President to find an example of filling a vacancy that arose in an election year when the presidency and the Senate majority were held by opposing parties.”
— Eric Revell
(Photo Credit: Gage Skidmore via Flickr / Creative Commons)
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