‘McConnell Rule’ New Normal? Not So Fast

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By Melissa Heelan Stanzione and Patrick Gregory

Nov. 9 — The U.S. Senate’s lengthy obstruction of Judge Merrick B. Garland’s nomination to the U.S. Supreme Court will not necessarily be repeated in the future, court-watchers told Bloomberg BNA Nov. 9.

Senate Majority Leader Mitch McConnell’s (R-Ky.) “rule” that the U.S. Senate shouldn’t approve a Supreme Court nominee of an opposite party president in the final year of the presidency is “situational” and not binding, Caroline Fredrickson told Bloomberg BNA.

It may be the preference only until, for example, a justice decides to retire during the final year of President-elect Donald J. Trump’s term, Fredrickson said.

Fredrickson is the president of the American Constitution Society, a progressive legal think tank that “promotes the vitality of the U.S. Constitution and the fundamental values it expresses.”

Election Year Inaction

Barely an hour after Justice Antonin Scalia’s death was confirmed Feb. 13, McConnell announced his intention not to take action on any Supreme Court nominee named by President Barack Obama.

In March, Obama nominated D.C. Circuit judge Garland to fill the vacant seat, and the Senate Judiciary Committee has taken no action on the nomination.

McConnell cited the “Biden Rule,” to support his inaction, which then-Senator Joseph R. Biden Jr. (D-Del.) proposed in 1992.

In a speech, Biden said a vote on a high court opening—should one arise—should be postponed during the “full throes of an election year.”

How does McConnell’s interpretation of the rule compare with Biden’s intention?

For one thing, it extended the time frame, Fredrickson said.

Biden announced his standard for Supreme Court vacancies during an election year in June.

Garland’s nomination has been pending for 238 days, as of Nov. 9.

McConnell announced his position “before Justice Scalia was even in the grave,” Kenneth Jost told Bloomberg BNA.

Jost is the author of the “Supreme Court Yearbook” series and the “ Jost on Justice” blog.

Obstructionism Will End

The Democrats won’t continue the obstructionism next year, Jost said.

It would “be hard for Democrats who insisted that Garland was entitled to a hearing, to try to thwart a hearing on President Trump’s nominee,” he said. Not only would it be inconsistent, they also don’t have the votes, he said.

Furthermore, McConnell’s tactics lasted only one year, but “I can’t imagine Senate Democrats obstructing the confirmation process for two full years and even longer,” Jost said.

Another court observer, Josh Blackman, doesn’t think “the norm matters much.”

“The fate of a nominee will depend on whether the President and Senate majority are of the same party,” he said.

Blackman is an associate professor of law at the South Texas College of Law in Houston who specializes in constitutional law.

“After this election, the filibuster for the Supreme Court is likely to be eliminated, so a simple 51 vote will be sufficient to confirm a justice in an election year, or any year for that matter,” he said.

Another court watcher hopes McConnell’s “rule” won’t become the new norm.

“It’s a huge, unprecedented deterioration of structural norms. It should be rejected by both sides,” Jason P. Steed told Bloomberg BNA.

Steed is an appellate attorney with Bell Nunnally & Martin LLP, Dallas.

Fredrickson also lamented how the nomination process has changed.

The politicization of the process has “escalated” and the judiciary is suffering because of it, she said.

To contact the reporters on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com, and Patrick Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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