Twenty-four years after then-Sen. Joe Biden (D-Pa.) declared that the U.S. Senate should no longer proceed with Supreme Court nominations during presidential election years, Republicans successfully used that precedent to block former President Barack Obama’s nominee, Merrick Garland. Forcing the Democrats to taste their own medicine not only saved the late Supreme Court Justice Antonin Scalia’s seat, it also secured an originalist majority now that Brett Kavanaugh sits on the bench.
The midterm elections gave the GOP a larger Senate majority, but it would be prudent for President Trump and conservatives to obey the “Biden rule.” Should a vacancy on the Supreme Court occur in 2020, the Senate GOP should abstain from proceeding with a replacement nominee. This would further expand Trump’s window of opportunity to cement the high Court’s new conservative majority.
Following the Biden rule would not discourage base Republican voters from turning out in 2020. In fact, abiding by that precedent might actually benefit the GOP in the upcoming presidential election. Supreme Court nominations played a critical role in Trump’s victory in 2016, prompting self-identified evangelical voters to turn out and secure crucial swing states like Florida, North Carolina, and Iowa. According to a 2016 Washington Post poll, Trump bested Hillary Clinton by a significant 56 percent among the voters who viewed high Court appointments as the “most important factor.”
The GOP faces a tough Senate map in 2020, and any strain of hypocrisy among Republicans could endanger their majority. Republicans could face stiff challenges in the Senate races in Arizona and Maine. It would be a mistake for Majority Leader Mitch McConnell (R-Ky.) to disobey the Biden rule because such hypocrisy could stave off independents voters in these important battleground races. Maintaining the moral high ground will encourage base Republican voters and maintain enough independent voters to create a coalition that could save the GOP Senate majority in 2020.
One of writer and political activist Saul Alinsky’s famous “Rules for Radicals” was to not resist the rules of the enemy but to make the enemy live up to his own rules instead. It was a courageous tactic pulled off by McConnell in 2016 and he should not shy away from doing so again. The Democrats accused the GOP of obstructing the Garland nomination, revealing their own hypocrisy. Shouldn’t Republicans then strive to remain innocent of any similar violation? Such a break in precedent would give Democrats adequate ammunition to effectively use Alinsky’s tactic.
Though another textualist jurist on the bench would be an important conservative win, Trump should wait to do so if the opportunity presents itself.
Doyle Wang is a George Washington Fellow and a junior studying Politics.