Background:  As is now widely known, US Supreme Court (USSC) Justice Antonin Scalia died of a heart attack while vacationing at a West Texas ranch. Before the man’s body had even reached room temperature, conservative media-types and bloggers were demanding that the Senate’s GOP majority refuse to take the smallest step towards participating in the vetting process that comes after the president has nominated someone to replace the departed jurist. More particularly, tell Obama that you will simply not hold the constitutionally mandated hearings on whomever is nominated. The nominee won’t get anything so much as a courtesy phone call.

Having received these marching orders, Senate Majority Leader, Mitch McConnell (R-KY) snapped to, clicked his heels, saluted and went public with what he had been told to say; there will be no hearings, no matter who is nominated and how qualified that person. Make no mistake, this has never happened; not once in the history of the US Senate (1).

To justify this unprecedented obstruction, McConnell and conservatives far and wide, invoked what they deceitfully labelled the “Biden Rule”; i.e. that in an election year, the president should hold off with any nomination and allow the newly elected Commander-in-Chief to make the selection, thus allowing “the people to have a vote”. This all sounds wonderfully democratic. The truth is, it is a deeply flawed rationale as will be discussed next.

First, there is no such thing as the “Biden Rule”; certainly nothing that passed out of the Senate after debate and a vote. What happened in 1992, when the now-VP was a senator from Delaware, was this:  Biden opined that in an election year, it would be best if the sitting president let the next Chief Executive put forward his choice to fill an existing USSC vacancy. However, what present-day conservatives carefully avoid mentioning is that after so stating, then-senator Biden fully participated in the vetting process and confirmation of now-Justice Kennedy. In effect, with his actions, Biden negated his own “rule”.

Second, the Constitution is absolutely clear; i.e. the President “shall nominate….” There is no latitude, no qualification to hold off because an election year is in progress. Likewise, the Constitution is just as clear that the Senate is obligated to “advise and consent” as to the suitability of the nominee put forward. Notice how these obligations are ordered:  The president must first nominate, and then it is the Senate’s job to “advise and consent”. There is nothing in the Constitution that gives the Senate the prerogative of passing judgment of any kind before a person has been nominated (2). But, that is what the present Senate majority had done, abdicating their constitutional responsibility in the process.

Third, to remain logically and internally consistent with conservatives’ “Not in an election year” rationale, one would have to also posit that no member of Congress in the last year of his/her term, should be casting a vote on any piece of legislation, whether it involves a USSC nomination or something else. Isn’t the conservatives’ idea to “let the people have a vote”? Why must just the president be limited?

Unintimidated by Senate Republicans’ gambit, President Obama proceeded, after careful deliberation, to nominate Judge Merrick Garland to fill the Scalia vacancy. Well known as a moderate with a solid record of fidelity to the law and the Constitution, Garland won appointment to the US District Court of Appeals for the DC Circuit. The vote then was strongly bipartisan and included public praise of the man from such notable Republican senators as Orrin Hatch (UT). In any other year, this jurist would win appointment to the USSC. But, we are living in the age of blocking Obama, no matter what.

Confronted with the nomination of Garland with his sterling record, conservatives promptly tried to paint him as an anti-Second Amendment activist who would thus be inclined to rule against citizens’ right to bear arms. In fact, almost the opposite is true; i.e. in a case that a gun-owner lost in a lower court (3), Garland refused to let that decision stand and pushed the case forward for review by a higher court where the gun-owner’s appeal was upheld.

Finally, as this confrontation between Obama and Senate Republicans plays out, the public has started to weigh in. Specifically, in the first poll taken dealing with this matter, 61% of respondents wanted the USSC vacancy to be filled and promptly. It is anticipated that this number will grow as people get a true picture of Garland’s credentials and record. If that proves true, it becomes likely that conservatives’ obstruction will exact a price from GOP candidates when the November election rolls around.


  1. No one should mistake the present situation for previous ones wherein one or the other party engaged in obstruction, but did so after a person had been nominated.
  2. Republican presidential aspirant Senator Ted Cruz tried to “spin” the wording of the Constitution such that the obligation to “advise” can precede the president’s nomination. As Cruz put it, “We are advising the President….” not to put a name forward. This is flimflammery from a supposedly well trained lawyer who should know better.
  3. The case in question was District of Columbia v. Parker.