- - Tuesday, September 22, 2020

The Honorable Ruth Bader Ginsburg’s final remonstrance “my most fervent wish is that I will not be replaced until a new president is installed” goes into the pantheon of clever deathbed repartee alongside Oscar Wilde’s “either this wallpaper goes, or I do.”

Let’s take a breath and follow the Constitution. The president should nominate Amy Coney Barrett this week in prime time. She is a choice worth voting for him a first or second time. The Senate Judiciary Committee should hold hearings within two weeks, vote the nomination out and the Senate should confirm her in late October.

Leader McConnell needs only 47 votes in favor and can allow up to six Republicans to vote present, if he had to. No problem. A vote of 47 to 47 Democrats will let Vice President Pence break the tie. Maybe the Senate can confirm the nomination in time for the second presidential debate. The two candidates can then debate who will fill the seat to replace Justice Stephen Breyer who is likely next at age 82. Did I just say all that out loud? Yes, yes I did.

That timeline will be almost a week longer than the confirmation process took for Chief Justice John Roberts in 2005. That was 24 days in September, nomination to confirmation. This is the most fitting tribute to Ruth Bader Ginsburg, that a woman nominee should get treatment equal to a man.

Of course, those of us who support the Constitution as written have to put up with the ridiculous and the cynical who will remind us about Judge Merrick Garland’s failed nomination by Barack Obama in 2016. That tends to be when I change the channel. The first error in that tedious story was made by Mitch McConnell, Kentucky Republican, in 2016 when he cited the “Biden Rule,” without explaining it fully, to tell us why Judge Garland’s nomination to replace the iconic Justice Antonin Scalia would not get a vote in an election year.



That “Rule” articulated by Sens. Joe Biden, Delaware Democrat, Strom Thurmond, South Carolina Republican, and Ted Kennedy, Massachusetts Democrat, each consecutively as chairmen of the Senate Judiciary Committee, is that the Senate will not take up a Supreme Court nomination in an election year especially when the Senate majority is not likely to confirm the nominee. Unfortunately, it is now stated this way: A nomination will not be taken up when the Senate majority and the President are not of the same party. The first iteration is better. The outcome is the same.

It is not a rule so much as it is a warning. Its original articulation came in 1968 and was long called the “Thurmond Rule.” It arose in a less partisan time when President Johnson would simply not accept what Senate leaders of both parties were telling him, that his friend and former personal lawyer Associate Justice Abe Fortas did not have the support of the Senate majority to be confirmed as Chief Justice.

Republican presidential candidate Richard M. Nixon had asked the Republicans in the minority to keep the seat open so that he could fill it after his 1968 election and 19 Senate Democrats preferred that too.

The so-called Biden Rule is a warning that the Senate’s majority will not bring a president’s nominee to a vote in an election because the majority is prepared to vote the nominee down. That is what Leader McConnell should have said, pointing to the painful nomination of Abe Fortas. When a Majority Leader speaks we should all know that he is speaking for the majority. When Republican senators followed suit in 2016, they were all speaking for the majority too.

It makes economic sense. There is only a 20% confirmation rate for nominees during the last year of a presidency when different parties controlled the White House and Senate.

That brings us to Sen. Lindsey Graham, South Carolina Republican, now chairman of the Senate Judiciary Committee. As much I like him personally, Mr. Graham does not have the shiniest plaque in the Senate office corridor. My very personal experience with him is that he would rather pander than think.

So, when on Oct. 3, 2018, I heard him tell The Atlantic’s Jeff Goldberg that “if an opening comes in the last year of President Trump’s term, we’ll wait ‘til the next election,” I emailed his, and other Senate Republican counsels to alarm them that Mr. Graham had completely misunderstood and misstated the Biden Rule and that it was “not too early to straighten the senator out, and maybe others.” And now here we are, the chairman of the Judiciary Committee looks like an idiot. Bless his heart.

In fact, there have been at least 26 Supreme Court nominations in an election year, 11 have occurred when the same party controlled both the Senate Majority and the White House. Of those, five were confirmed including the Great Chief Justice, John Marshall.

None of this matters; it is all a trivial political pursuit. The Constitution says that the president nominates potential justices to the Supreme Court and that he appoints them after receiving the Senate’s advice and consent, expressed by the support of a Senate majority.

To do otherwise is to disenfranchise American voters and to ignore the will and effort of the people who we asked to go and vote, as they did in 2016 when Mr. Trump won 30 of 50 State elections and in 2018 when the voters gave him a Senate Republican majority to fulfill his mandate with regard to the federal courts. In this democracy, in each case this was an expression of the people’s “most fervent wish.”

• Manuel A. Miranda served as judicial affairs counsel to Senate Majority Leader Dr. Bill Frist.

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