Mitch McConnell looks like a hypocrite on Supreme Court nominees, but he didn’t have to
Senate Majority Leader Mitch McConnell of Kentucky rekindled the acrimonious debate over control of the Supreme Court when he acknowledged the Senate would consider a presidential nominee to fill a vacancy on the court if one occurred in 2020. Democrats were apoplectic given the role played by McConnell in blocking consideration of President Barack Obama’s nominee, Merrick Garland, to fill the seat vacated by the death of Justice Antonin Scalia in 2016.
At the time, McConnell defended Republicans’ decision not to hold a confirmation hearing for Garland, much less grant him an up-or-down vote on the Senate floor, by invoking the so-called Biden Rule. Named after then-Sen. Joe Biden, the rule referred to the informal practice, begun in 1992, whereby the Senate refrained from considering Supreme Court nominees during a presidential election year. McConnell argued that the decision on who should replace Scalia, one of the court’s leading conservatives and a crucial vote on controversial cases, “should be made by the president that the people elect in the election that’s now underway.” However, when asked what he thought Republicans would do if a vacancy opened up on the Supreme Court in 2020, also a presidential election year, McConnell responded, “Oh, we’d fill it.”
Amid Democrats’ outrage with what they see as blatant hypocrisy and Republicans’ contorted justifications for their actions, we have lost sight of the Constitution. The Senate is entirely within its rights to consider, or not to consider, presidential nominations, including those for the Supreme Court. Arguments otherwise, both on the Left and the Right, reflect a flawed understanding of the Constitution’s doctrine of separation of powers in general and how it relates to the composition and independence of the judiciary in particular.
To his credit, McConnell initially framed the Republican position not to consider Garland in constitutional terms rather than in terms of specific objections to the nominee and his judicial philosophy. Early in the debate, McConnell asserted, correctly, “It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent.” But the taciturn Kentuckian shifted his emphasis as the debate unfolded, arguing, “The American people should have a voice in the selection of their next Supreme Court justice. … Therefore, this vacancy should not be filled until we have a new president.”
By basing the Republican position on the president, instead of on the Senate’s right not to act, McConnell relegated his institution to a secondary role in the confirmation process that was inconsistent with the spirit of the Constitution. While the Constitution indeed grants the power to nominate to the president exclusively, it simultaneously requires the Senate to confirm those so chosen. In other words, the Appointments Clause requires both presidential and senatorial action. The Constitution envisions the president and Senate formally exercising that power jointly, yet independently.
The Constitution’s doctrine of separation of powers requires that the three branches of government be separate and independent from each other. But separation is impossible without independence. In Federalist 51, James Madison argued that each branch “should have as little agency as possible in the appointment of the members of the others.” During the Federal Convention of 1787, Madison’s fellow Virginian George Mason considered “the appointment by the Executive as a dangerous prerogative. It might give him an influence over the Judiciary department itself.” According to Madison, the implication was “that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people.”
Yet there is an exception to this principle when it comes to judicial appointments. For Madison, there were two reasons why selecting people to serve on the judiciary should be governed by a different process. First, the Constitution intended the judiciary to be an apolitical branch of the national government. Selecting judges via popular vote would make it an inherently political branch. Second, the nature of the judiciary’s role required “peculiar qualifications,” according to Madison, that may not be best secured by a popular election.
The Constitution’s Appointments Clause should be understood as the solution to this problem. By creating a joint presidential-senatorial role in the confirmation process, Madison and his colleagues hoped to preserve judicial independence and the apolitical nature of the judiciary while simultaneously ensuring the requisite qualifications in those nominated and confirmed. The Appointments Clause does so by avoiding strict executive or legislative control over who is appointed to serve on the federal bench. In contrast, the executive would wield disproportionate influence over the composition of the judiciary if the Senate’s role in the Appointments Clause was deferential to the president’s, as implied by McConnell’s messaging during the Garland debate.
While the Republican decision not to consider Garland’s nomination to serve on the Supreme Court was permissible under the Constitution, it is not impervious to criticism and beyond reproach. To the contrary, highlighting more clearly senators’ power in the confirmation process makes it easier for voters to hold them accountable for the decisions they make.
There is no expectation in the Constitution that the Senate must wait until after an election before it considers a Supreme Court nominee during a presidential election year, just as there is no expectation that the Senate must consider a Supreme Court nominee in the first place. That is for senators to decide based on how they feel about the nominee before them.
Under the Constitution, the doctrine of separation of powers necessarily circumscribes the president’s decision rights in the confirmation process by granting the Senate a co-equal role to ensure that qualified nominees ultimately end up on the federal bench without jeopardizing the independence of the judiciary.
If Republicans had been more upfront about their reasons for not acting on Garland in 2016, they would have affirmed the Senate’s power under the Constitution while simultaneously making it easier for voters to hold them accountable for their decision not to act. Instead, they portrayed themselves as passive players in the process. In doing so, they made it inevitable that McConnell’s latest shift in message would appear hypocritical.