No sooner had Justice Anthony Kennedy announced his retirement than Cryin’ Chuck Schumer, Minority Leader of the U.S. Senate, took to the floor and said that the Republicans should not act to fill the vacancy because it was an election year, and that they would be acting inconsistently if they did otherwise, since they had failed to take up the nomination of Judge Merrick Garland, who was named in March 2016 to fill the vacancy caused by the death of Justice Antonin Scalia in February of that year.
Although mainstream-media allies of the Democrats like Sleepy Eyes Chuck Todd rushed to proclaim that the Republicans would look hypocritical if they filled the seat before the election, the hypocrisy is 100% on the side of the Democrats. The so-called “Biden Rule,” promulgated by their fellow Democrat Joe Biden in a speech delivered in 1992, when he was Chairman of the Senate Judiciary Committee and George H. W. Bush was President, holds that a seat which becomes vacant in the summer of a presidential-election year should not immediately be filled by the President, who should instead wait until after the election to make an appointment, or else appoint a moderate. The Democrats and their MSM allies know very well that the rule applies only to presidential-election years, but are now pretending that it applies to all election years; if they had the honesty to admit that they are arguing for an extension of the rule to midterm-elections, they could not escape the charge of acting inconsistently themselves, but they would not be compounding that fault with insincerity; as it is, having spent 2016 arguing that the rule should be ignored, and having now switched to maintaining that the rule should be followed, in addition to acting hypocritically they are displaying their disingenuousness for all to see as well.
The question whether the Biden Rule should be followed does not pose itself unless the year is divisible by four. The question then is, should President Trump refrain from making an appointment to a vacancy which occurs in 2020, or, assuming he is re-elected, in 2024? In my opinion, even if one would apply the rule to other Presidents, one should not apply it to President Trump, for a very good reason: he took an unprecedented action during the campaign which trumps (pun intended) the rule: when still a candidate for the nomination in May 2016, he released an initial list with 11 potential nominees to the Supreme Court; when he was the Republican nominee for President in September 2016, he added 10 further names, bringing the total up to 21; since Justice Neil Gorsuch was chosen from that list, 20 names remain. As long as President Trump chooses a nominee from that list, it is possible for Republicans to maintain that the people have pre-approved the choice, thus refuting the Democrat argument that the appointment should wait until after a midterm-election—in which only ⅓ of the Senators are standing!—in order to give the people a chance to weigh in: they already weighed in when they elected Donald J. Trump over Crooked Hillary.
Even at the time, it was not hard to find voters who said that the Supreme Court was their main reason, or alone a sufficient reason, to vote for Donald Trump; now the Senate should respect those voters by approving the nominee, whoever that person is, before the new term of the Supreme Court begins in October.
