On Monday, President Trump had an interview with Hill.TV where he responded to the possibility of filling an open seat on the Supreme Court if that opportunity presented itself. He said that if a Supreme Court vacancy opens up between now and 2020, he will not wait and will move to nominate someone to fill the vacancy.
This is very important because the Republicans played a game on Barack Obama during the 2016 presidential election. Republicans made a huge stink about nominating a Supreme Court justice should the opportunity arise while the election was going on. Senate Majority Leader Mitch McConnell and the top Republican leaders were able to push the narrative that the opportunity to pick or choose a nominee should fall on the next president during a lame duck presidency.
Obama and the opposition media fell for it, which gave Pres. Trump and the Republican-led Senate two Supreme Court justices within a year-and-a-half of each other.
Hill.TV host Saagar Enjeti asked, “But do you square that with Merrick Garland?” after Trump said he would “absolutely” nominate someone to fill any vacancy that arises between now and 2020. Trump responded, “No. I have a lot of respect for Judge Garland, by the way. I have to tell you that.”
— The Hill (@thehill) June 24, 2019
The rules are that the President nominates then the Senate approves that nominee or not. Obama nominated Garland, and the Senate did not agree. Garland was so bad that he didn’t have enough Senate support to even have a vote – and, thus, Garland was not approved. Obama nominated no one else after Garland was rejected, giving Trump the nomination choice.
The Democrats have claimed that Obama was denied his chance to have the Senate approve or disapprove his nominee. That is not true, the Senate considered Garland but decided not to approve. But in reality, Obama could have picked a second nominee after Garland was failed to be approved.
Had Obama nominated an acceptable pick the first time, or even the second time, or third, after Garland failed to win approval, then he or she would have been approved by the Senate.
The Democrats have real problems with playing by the rules.
The ‘unwritten rule’ about nominating a SCOTUS appointment during the ‘lame duck’ period of a Presidency applies when a POTUS is not in the running for re-election. So an appointment in the lead-up to 2020 bears no similarities (aside from purely superficial ones) with the Garland case. Obama was lame duck because he would no longer be President in 2017 regardless. But he also lacked control of the Senate, and he was on notice that the Senate was not going to consider any nominee he might put forward during his lame duck period, so Obama was flying a political kite when he nominated Garland. By contrast, Trump has the numbers in the Senate to actual progress a nomination to confirmation.
But even if a Democrat won in 2016 then that person would have wanted to nominate and try and secure a SCOTUS pick for their own Presidency – indeed that is the very reason Ginsberg didn’t retire while Obama was still President despite many urging her to go – her vanity and arrogance ensured she waited sure in the knowledge that a Democrat woman would win the election and she could revel in feminist adoration and retire with great theater as a woman would nominate an even more progressive woman to fill her spot).
So the President making the nomination in 2019 has something Obama did not have in 2016 – incumbency (and statistically most 1st term Presidents go on to win a 2nd term – Since FDR, the number of single term Presidents (where a President actually stood for re-election – aside from Ford) is two (Bush 41 and Carter). It’s a fair bet that Truman, Kennedy, and Johnson all would have won 2nd terms had they stood.
So the overwhelming odds are that Trump will ride incumbency like most of his predecessors back into the White House and so, unlike Obama, any SCOTUS pick he makes in the lead up to the 2020 election is just business as usual despite all the Democrats’ huffing and puffing.
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