As we prepare to watch history made and distorted once again, a few facts from history come in handy.
The topic is the Supreme Court. Until Mitch McConnell, Republican leader of the Senate, invented his latest precedent with his refusal to even hold hearings on the nominee of President Obama, this was not part of our history.
McConnell argued, and he had the votes to back up his argument, that the selection should not take place in an election year and certainly should not be made by a lame duck president.
In fact, a dozen presidents have filled vacancies on the high court in an election year. Both presidents and senators understood their duties as enshrined in the Constitution and carried them out.
The list is impressive for several reasons. Lincoln did it as did Wilson and Hoover and Roosevelt. Even more telling are the first two names on the list, George Washington and Thomas Jefferson, answering that question so often involved in high court cases — what would the founding fathers think? We know not only what they thought but what they did. All disagreed with McConnell.
John Adams was a true lame duck in 1801, having lost the election the previous fall to Thomas Jefferson and waiting until the swearing-in of the new president which back then did not take place until March.
Yet in January 1801, he had a vacancy to fill and made a nomination; the Senate considered the nomination and confirmed the nominee, John Marshall, the longest-serving Chief Justice and one of the most important voices on the court in our history.
Now, McConnell is in a hurry to have a nominee named and approved in the next few months, accelerating a process that even without all of the misleading rhetoric and distorted history would normally linger into the late fall.
Democrats would love to delay this as long as possible but there appears to be little that they can do since Republicans in the Senate ended the filibuster for these nominees after it served them so well for so long when they were out of power and blocked anything and everything they could.
Once again we are hearing echoes of the Biden rule, a reference to a speech by then-Sen. Joe Biden who said that the Senate should be suspicious of any high court retirements in the months before an election and in such a case only approve those with bipartisan backing.
There was no Biden rule. Obama was not a lame duck. President Trump has every right to nominate someone as soon as he wishes but there is no precedent for speeding up the consideration.
There are considerations that go beyond politics. The Mueller investigation into the 2016 election and Trump’s role is still going on and conflicts arising from it are likely to end up before the Supreme Court. Since McConnell was willing to let the court operate with eight justices for several months in 2016, it would not hurt to leave the vacancy until we know what Mueller has found, what charges emerge and what the legal status and vulnerability of the president is.