It wasn’t in the least bit unexpected, but the speed at which Mitch McConnell overthrew his alleged principles really was breath-taking. He wasn’t the only one. We also had Senator Lindsay Graham, who in 2016 invited us to hold his words against him.
Okay, invitation accepted.
Let’s journey back to 2016 for a moment and refresh our recollection. On March 16, 2016, President Obama nominated Merrick Garland, then (as now) the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to succeed Antonin Scalia shortly after his death. For 293 days (or almost 10 months), Mitch McConnell refused to even meet with Judge Garland, on the alleged theory that the voters needed to be given a chance to weigh in on the next Supreme Court justice first.
At the time, the Republicans tried to invoke the so-called “Biden Rule,” derived from a speech that Biden gave in 1992, arguing that President George H. W. Bush (the elder) should not appoint a replacement if there were a Supreme Court nomination in the summer of the year before the November election.
No one was buying it then, and no one is buying it now.
Mitch McConnell is trying to make the completely indefensible distinction that the Republicans hold both the Senate and the Presidency now, and that somehow overrides the rule he established for Merrick Garland’s nomination.
If that were true, then when the Democrats next have the Senate and the Republicans have the White House, the Democrats could block all nominations for four years . . . just because they can.
That is obviously not what “advise and consent” was intended to do. Advise and consent requires, inherent in its nature, that one taken some kind of action.
There are now pundits who are saying that if this is how the Republicans want to play, the Democrats (the next time they have the Senate and the White House) should just increase the size of the court from nine to eleven and appoint two new justices (known as “court packing”).
There is no rule in the Constitution that prevents that.
In fact, President Franklin D. Roosevelt tried to do just that with his Judicial Procedures Reform Bill of 1937, which would have increased the size of the court to 15, because he was tired of losing legal challenges at the Supreme Court to his “New Deal” legislation. His effort eventually failed because of political reasons, but not because there was anything in the Constitution that prevented it.
If the Democrats did take such a step, that would be putting more fire on the fuel of a furious partisan divide, and there would theoretically be nothing preventing the Republicans, when they’re next in power, from increasing the size of the court even more. But it’s a dangerous game the Republicans are playing right now, if they want to engage in such blatant hypocrisy. This is what happens when you no longer adhere to long-established rules of fair play.
 As it happens, there was no such vacancy in the summer of 1992, so there was no such precedent set. The whole argument was premised on a speech that Biden had given 24 years earlier.
 The Supreme Court ruled unanimously against Roosevelt in the cases of Humphrey’s Executor v. United States, Louisville Joint Stock Land Bank v. Radford, and Schechter Poultry Corp. v. United States, and Roosevelt had additional judicial setbacks as well.
 The bill was held up in the Senate Judiciary Committee by committee chair Henry F. Ashurst for 165 days, and was further undermined by the untimely death of its chief advocate, Senate Majority Leader Joseph T. Robinson.
 There are four Republicans who have been identified as potentially voting against McConnell, and those are Lisa Murkowski, Susan Collins, Mitch Romney and Chucky Grassley. But whether they actually do vote off or not would be anyone’s guess.