Nothing should be more elementary than Senate Republicans wanting to use their majority to fill an election-year vacancy on the Supreme Court, especially as their hold on that majority grows more tenuous. If a seat opens up before November, it could be the GOP’s last chance for a very long time to add a right-wing justice. Mitch McConnell has always been mindful of the optics of Republicans rushing to confirm someone this year after they roadblocked Obama’s attempt to fill Scalia’s seat in 2016. The two situations simply aren’t analogous, McConnell has said: In 2016 we had divided government, with the president a member of one party and the Senate controlled by the other, whereas this year we have unified government. When government is divided, we hold the seat vacant and defer to the voters in November to decide which party they want to fill it.
But when government is united, no such deference is necessary.
Pretty straightforward — except for the fact that Lindsey Graham, the chairman of the Judiciary Committee, went on camera in October 2018 and promised a hostile crowd that his party would hold a vacant SCOTUS seat open in 2020 provided that the vacancy happened after the primary process had begun. There was no mention of divided government in Graham’s pitch; he seemed to be in agreement with Senator Joe Biden’s belief that any election-year vacancy should be left to the voters to decide.
Take 80 seconds to watch. Graham is eager to convince the skeptical audience that he’s not a hypocrite and that the GOP will show the same deference to voters in 2020, now that it’s a president from their own party who’s in position to fill a vacancy, as they did in 2016 with Obama and the Scalia vacancy.
Sen. @LindseyGrahamSC: "If an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait 'til the next election." #SCOTUS #TheAtlanticFest pic.twitter.com/3he6LCGDeC
— CSPAN (@cspan) October 3, 2018
Note the bit at the very end where Jeffrey Goldberg warns Graham that he’s going to hold him to this promise and Graham, with maximum bravado, invites him to do so. I’ve written at least two posts about that pledge just because of how surprising and short-sighted it was. Obviously Graham wasn’t going to block Trump and the GOP majority from filling a SCOTUS vacancy this year. He couldn’t do so even if he wanted to: Although he’s the chair of the Judiciary Committee, if he went to the mat to try to hold the seat open McConnell would bring the nomination to the floor without a committee vote in order to get around him. Graham’s opposition to confirmation would be not just futile but potentially politically ruinous, spoiling his relationship with Trump and alienating Republican voters in South Carolina, where he’s up for reelection.
So what the hell was he thinking? Why make a promise, on tape, in front of a liberal crowd, beside a liberal interviewer, that he knew he could never, ever keep?
The news today is that he’s now faced reality and is backing off his pledge. He’s abandoning the Biden rule for the McConnell rule, i.e. we only hold open Supreme Court seats in an election year when government is divided.
“Well, Merrick Garland was a different situation. You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you’ve got them both would be different. I don’t want to speculate, but I think appointing judges is a high priority for me in 2020,” Graham said in an interview on “Full Court Press with Greta Van Susteren” set to air Sunday…
“If you look into the history of the country, there had not been an occasion where somebody was confirmed in a presidential election year after primary started when you had divided government,” he added…
“Joe Biden urged President Bush 41 not to appoint somebody in the election year. So we call that the Biden Rule, but this would be a different circumstance,” Graham said.
The Biden Rule is the rule he touted in the 2018 clip! On camera!
Why didn’t he see this coming? I’m mystified that an old pro would have made a pledge he knew there was no realistic way he could honor. It could even create some electoral peril for him if a vacancy really does open up before November. Although he’s a heavy favorite to win to his Senate race, he’s not quite the sure thing he was pre-pandemic. His opponent is looking for ways to mobilize turnout in South Carolina, knowing that the Democratic minority there may need extra motivation to bother showing up to support a longshot candidacy. If Graham had simply followed McConnell’s lead about the Garland precedent applying only in periods of divided government, little attention would have been paid. He’d be in lockstep with his party and consistent in his strategy. As it is, his reversal looks cynical and expedient, perfect attack-ad material. How’d he let that happen?