The whole argument is kind of silly, intended to deflect from the actual question - can the Senate prevent a President from nominating a SCOTUS justice? The answer to that should be a resounding NO, and any attempt to prove otherwise is just spin.
The Consitution says only that the President can nominate with the advice and consent of the Senate. It does not say "except in an election year when the opposition party has control of the Senate", so it starts off as a bogus argument. The facts are that in only 11 cases has a SCOTUS opening occurred during an election year, and in five cases those seats were filled prior to the election. The nominations that failed were not blocked, they failed in the Senate. Who was in the majority is irrelevant - we would be reading something into the Constitution that simply isn't there. The only reason to go off into the weeds about when this last happened would be to show that it's uncommon - but so are SCOTUS vacancies in an election year. And the fact that it DID happen at least once is precedent in its own right.
This all came about because Mitch is trying to justify his refusal to allow Merrick Garland to even be considered, much less have a confirmation hearing. There was no precedent for that, and McConnell himself said it was the proudest moment of his career.
While an argument might be made that you don't want a "lame duck" President to make an appointment on his way out the door (and again, it would be unsupported by the actual Constitution), a President is not considered to be a "lame duck" until after the last election of his term - either because of limits or the fact that he lost the election. A President entering the final year of his term is entitled to exercise all the rights and privileges afforded to him by the Constitution, no matter what party is in the majority. Keep in mind, when the document was written there were no parties. |
