On Sunday, Democratic nominee Joe Biden said the U.S. Senate should not act on President Donald Trump’s Supreme Court nominee to represent Justice Ruth Bader Ginsburg until after the 2020 election. Trump has pledged to nominate a woman to the seat this upcoming week and Senate Majority Leader Mitch McConnell has pledged that Trump’s nominee will receive a Senate vote.
“Even if President Trump wants to put forward a name now, the Senate should not act until after the American people select their next president, their next Congress, their next Senate,” Biden said on Sunday.
“If Donald Trump wins the election, then the Senate should move on his selection, and weigh the nominee he chooses fairly,” the Democrat admitted.
“But if I win this election, President Trump’s nominee should be withdrawn. As a new president, I should be the one who nominates Justice Ginsburg’s successor, a nominee who should get a fair hearing in the Senate,” Biden added.
The Democrat also argued against putting out a list of potential nominees as Trump has done. While such a list allows voters to make a clear choice, Biden claimed that such a list would influence judges’ decisions, would put them unfairly in the public eye for criticism from which they could not defend themselves, and would preclude Biden from asking the Senate for advice before choosing a nominee.
Observers expect the 2020 election to be fiercely contested, with an unusual amount of mail-in and absentee ballots due to the Wuhan-originated coronavirus pandemic. Former Democratic nominee Hillary Clinton, who lost to Trump in 2016, warned that the results on election night may favor Trump and she warned that Biden “should not concede under any circumstances.” Clinton’s former campaign chairman, John Podesta, war-gamed the 2020 election and suggested that Biden might trigger a civil war if he refuses to concede.
Biden suggested that Trump was dividing the American people by rushing to confirm a Supreme Court nominee. Yet in 2016, when the Republican Senate refused to consider Barack Obama’s Supreme Court nominee in a divided government during an election year, Biden said, “I made it absolutely clear that I would go forward with the confirmation process, as chairman — even a few months before a presidential election — if the nominee were chosen with the advice, and not merely the consent, of the Senate — just as the Constitution requires.”
Contrary to popular belief, Mitch McConnell’s rule in 2016 only applied to divided government, when the Senate and the president were of different parties. Democrats at the time, however, insisted that Supreme Court justices could be nominated and confirmed before an election under any circumstances. Now, Democrats are calling for stalling until after the election — and some are threatening to pack the Court if Biden wins after Trump gets his nominee confirmed.
Trump’s nominee could very well get confirmed before the election — especially if the election results are as drawn out as some observers predict. As PJ Media’s Matt Margolis noted, Ginsburg herself was confirmed in 42 days, and Trump has 44 days before the election. Justices John Paul Stevens and Sandra Day O’Connor were confirmed even faster than Ginsburg, at 19 days and 33 days, respectively. In the case of a contested election, it may be tremendously important for the Supreme Court to be at full strength to make a decision.
If Republican senators vote to confirm Trump’s nominee, some may well be hypocrites. But many Democrats have shown themselves to be hypocrites on this issue, changing their tunes from 2016.
Biden has quite the flip-flopping record on the issue. In 1992, he opposed the nomination of a Supreme Court justice during an election year (when George H.W. Bush was president). He reversed that stance in 2016 before again reversing it on Sunday.
In such cases, it is important to keep in mind that Trump pledged to nominate originalist justices who interpret the Constitution according to its original public meaning, not according to their partisan goals. The president is reversing decades of “living Constitution” jurisprudence in order to restore the plain text of the agreement that defines the American republic. Meanwhile, Democrats are openly talking about changing the terms of that agreement by abolishing the Electoral College, packing the Supreme Court, ending the Senate filibuster (which Obama called a “Jim Crow relic”), and more.
Tune in as I deliver remarks on the passing of Justice Ruth Bader Ginsburg and the future of the Supreme Court. https://t.co/hXc7OOykxh
— Joe Biden (@JoeBiden) September 20, 2020
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.