Will Senate Republicans respect the Merrick Garland rule?

Supreme Court Justice Ruth Bader Ginsburg has died at the age of 87, just a few months before the presidential election.

Which raises the question: Will President Trump, with the help of the Republican-controlled Senate, try to fill Ginsburg’s seat before November? Or will the Senate GOP respect the public (mis)understanding of the rule they created in 2016 when Senate Majority Leader Mitch McConnell refused to consider former President Barack Obama’s appointment of Merrick Garland after the passing of the late Justice Anthony Scalia?

In 2016, McConnell invoked comments that then-Sen. Joe Biden had made on the Senate floor in June 1992 in the wake of Justice Clarence Thomas’s contentious confirmation hearing. The Senate should hold off on additional confirmation hearings until after the 1992 presidential election, Biden argued, citing the combative nature of Thomas’s confirmation. It was this rule that McConnell cited four years ago.

“The Senate will continue to observe the ‘Biden rule’ so that the American people have a voice in this momentous decision,” McConnell explained.

With Ginsburg’s passing, Republicans will be put to the test. Will they continue to respect the ‘Biden rule,’ as it is most often understood? Or will they abandon it now that they have the advantage?

The difference between 2016 and 2020, of course, is that the Republicans control both the Senate and the White House, meaning, the American majority’s will is clearly represented in the federal government. In 2016, the government was divided, and the will of the American public was much less discernible. This was always McConnell’s argument. He made it clear in 2016 that because the White House and Senate were controlled by different parties, he could not allow Garland’s confirmation to move forward. That is no longer the case, as McConnell made clear in his statement Friday night.

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame duck president’s second term. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme court nominee in a presidential election year,” McConnell said. “By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”

McConnell is right. The American public made clear in 2018 that the Republican majority is warranted, and until they return to the polls November there is no reason to believe that the voters who helped Senate Republicans keep and win their seats do not want those same senators to confirm a new justice to the bench.

But, given how polarized and combative this election cycle is, it would be foolish to assume that support for filling Ginsburg’s vacancy will be widespread. Thus, the will of the American public becomes just as murky, if not more so, as it was before Trump was elected.

In other words, there is no easy answer to the question that now awaits Republicans. And McConnell knows it.