Now that a presidential election year has begun, we can expect that if any new Supreme Court vacancy were to arise, Democrats would cite the “Merrick Garland standard” to argue the seat shouldn’t be filled until after the election. Given the thermonuclear political environment that would exist in the event of any such opening, it’s important to explain soberly why this lazy parallel is wrong.
It is true that Senate Majority Leader Mitch McConnell refused even to allow hearings for Garland, who was President Barack Obama’s high-court nominee after Justice Antonin Scalia died in 2016. As it was the final year of Obama’s final term, McConnell said the selection of a new justice should await the public’s choice of a new president. But to apply this to any potential vacancy in 2020 would require misrepresenting the background, circumstances, and McConnell’s own contemporaneous words.
The background involves statements and standards set by leading Democrats when they held Senate majorities while Republicans held the presidency. Obama’s own vice president, Joe Biden, said back in 1992 that if a new Supreme Court spot opened during the elder George Bush’s reelection campaign, it should not be filled until after the election. In 2007, New York Democrat Chuck Schumer said the Senate should refuse to confirm any high-court nominee by the younger Bush, whose final term still had more than a full year to run. Even at the appeals court level, Democrats blocked all but four of Bush’s 14 nominees in 2008, and one of those four was a Democrat to whom Bush reluctantly agreed as part of a deal.
The circumstances in 1992, 2008, and 2016 all featured a huge difference from 2020. In all three earlier situations, unlike today, the Senate majority belonged to a different party than that of the president. In 2008 and 2016, furthermore, the then-presidents were in their final terms in office, unable to run for reelection.
The argument McConnell made, therefore, was that voters had, in their wisdom, created an electoral check and balance by splitting partisan control of the different branches of government. They had checked that particular, outgoing president with a Senate majority of another party, and then had a looming chance to break the tie (as it were) because they would be choosing a new president regardless. It was in that situation of partisan divide, and only that situation, that McConnell embraced the Biden-Schumer standard of saying that no Supreme Court nomination would go forward.
Here were McConnell’s exact words when announcing his stance against hearings for Garland: “You’d have to go back to 1888, when Grover Cleveland was in the White House, to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year.” And: “A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.”
McConnell specifically and only was referring to situations in which voters had created the constitutional “tie” between the two parties, one able to be resolved by an election within a year. If voters had entrusted both the Senate and the presidency to the same party, the stalemate would not exist and the logic would not apply.
In sum, there is no “Merrick Garland standard” that applies when partisan control is not divided. If a high-court opening occurs this year, President Trump and the Republican Senate have been entrusted by voters to fill it.
