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Can You Fill a Supreme Court Vacancy in an Election Year?

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administrationâ  s asylum policy â  an Obama judge.â   â  We do not have Obama judges or Trump judges, Bush judges or Clinton judges,â   Roberts said in a statement. â  What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.â   (Photo by Chip Somodevilla/Getty Images)
By Andrew Leonatti on September 22, 2020 7:41 AM

Last Friday's death of U.S. Supreme Court Justice Ruth Bader Ginsburg gave way to an outpouring of grief over the loss of a trailblazing feminist icon. But that has quickly given way to the impending battle over who will take her seat — and who will get to make that choice.

President Donald Trump announced that he expects to name Ginsburg's replacement by this weekend, and U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, said the Senate will take up that nomination.

But what about the election? Can Trump even make a Supreme Court nomination in an election year? Wasn't there something like this that happened in 2016?

In short: Yes, the president can make a nomination, and the American people are about to get another lesson in the difference between "laws" and "norms."

Remember Merrick Garland!

That's what Democrats across the country are now shouting. After Justice Antonin Scalia's untimely death in February 2016, then-President Barack Obama nominated Garland to take the seat.

With it looking like Obama would have a chance to reshape the court's ideological balance, McConnell hatched a bold scheme to -- refuse to consider Garland's nomination. McConnell's argument: That since it was an election year, "the American people should have a voice in the selection of their next Supreme Court Justice."

GOP senators also cited the now-ironically named "Biden Rule," referring to a speech that Trump's opponent this November gave in 1992 arguing against election-year Supreme Court appointments unless the parties could work together. And the GOP's gambit paid off, with Trump winning the election and the ascendance of Neil Gorsuch to the court following quickly after.

So, now we're only 40-some days away from the election. Surely the same rule applies as in 2016, when the election was still eight months away?

A Norm Is Not a Law

Here is what the U.S. Constitution — the supreme law of the land — says about presidential appointments:

...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for...

That's it. There are no rules regarding a timetable, or whether it is an election year. The president appoints, and the Senate approves or denies a nomination. Everything else — a Biden Rule, a McConnell Rule, a Thurmond Rule — has no force of law. They rely on senators getting along and acting in good faith.

The Senate is governed by a set of rules, however, which senators approve at the beginning of each new Congress. If they wanted to enact, for example, the new McConnell Rule, they could do so by majority vote. However, that has not happened.

But even the rules governing the Senate's internal workings are not laws. For example, the filibuster — a debate tactic that allows a minority of senators to deny votes on laws or nominations unless the majority can muster 60 votes to break it, has been neutered. During Obama's presidency, Senate Democrats eliminated the filibuster when it came to votes on all appointments except to the Supreme Court. That also changed in 2017, when McConnell led a rules change to ease the way for Gorsuch's confirmation.

The only filibuster that remains is the legislative filibuster, and that may not be long for this world either.

Is it starting to make sense now? This is the era of "politics as power" that we live in now. Consensus is becoming an antiquated concept for Pollyannas.

Oh yeah, and the Supreme Court may not have only nine justices for long, either. What, you thought that was sacred too?

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