There are plenty of rules and procedural hoops members of Congress are forced to navigate while trying to govern, which can make the process exasperating. It’s considerably worse, however, when lawmakers make up new rules that don’t exist.
As regular readers know, Republicans, for reasons that defied sensible explanation, have peddled annoyances such as the “Boehner Rule,” the “Hastert Rule,” and even the “Biden Rule,” despite the fact that each of these were entirely made up. They did not exist in writing or as a matter of common practice. The manufactured “rules” had no pedigrees, but they became convenient partisan tools that Republicans used to justify their preferred tactics, without regard for propriety or institutional norms.
Now, it’s happening again.
Sen. Lindsey Graham talked to The Washington Post the other day about what’s become of the confirmation process. “Is that the new norm?” the South Carolina Republican asked. “If that’s going to be the new norm, what do you do when one party has the Senate and the other party has the White House? How do you ever get anybody confirmed?”
These questions may not be entirely rhetorical in the near future. If Republicans fare well in this year’s midterm elections, what happens if there’s a Supreme Court vacancy during the latter half of President Joe Biden’s first term? The question led the South Carolinian to point to a rule:
... Graham, the always loquacious lightning rod of the Senate, openly wondered and gamed out the potential scenarios. Should a Supreme Court vacancy occur in 2024, Graham said, “the Garland rule” takes effect and Republicans will not contemplate processing a Biden nominee in the election year.
In other words, GOP senators don’t yet have a majority, but they’re already making a plan: If they’re in control, they’ll impose another year-long blockade on a Democratic president’s Supreme Court nominee, regardless of merit. Republicans are prepared to justify this by pointing to “the Garland rule.”
Which might make sense, if the Garland rule existed. But it doesn’t.
The name, of course, refers to Merrick Garland, whom Barack Obama nominated on March 16, 2016. The Republican-led Senate refused to consider the moderate, compromise nominee, saying there were only seven months remaining before Election Day — which was too close to balloting.
Circling back to our earlier coverage, Graham, in particular, was a leading partisan voice as part of the debate, insisting that he and his brethren weren't playing political games. Rather, their position was based on deeply held procedural principles.
“I want you to use my words against me,” Graham said at the time. “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
Two years later, Graham further committed to doing the right thing. “I will tell you this: If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election,” the GOP senator publicly declared. For emphasis he added, “Hold the tape.”
We held the tape. When there was a high court vacancy a couple of months before Election Day 2020, Graham and his Republican colleagues abandoned the principles they pretended to care about, and confirmed Trump’s choice as voters cast their ballots.
Now, Graham is prepared to re-embrace the principles he ignored, pointing to a rule that he made up and circumvented 16 months ago.
As for the possibility of a Supreme Court vacancy in 2023, Graham told the Post that would be “uncharted territory.”
It really wouldn’t. In 1975 and again in 1988, Senate Democratic majorities confirmed new justices nominated by Republican presidents. The combined total of opposing votes against the nominees was literally zero.
In other words, there’s ample modern precedent for senators governing responsibly. What actually constitutes “uncharted territory” is the partisan blockade — which is to say, another partisan blockade — Graham and his GOP cohorts have in mind.