Let’s start out by stating an uncontroversial US constitutional principle:
The president’s authority to make judicial nominations, and the Senate’s power to weigh them, is unaffected by the electoral calendar.
Okay – a whole bunch or people are going to argue that this is controversial. But no:
Twenty-five times presidents have made nominations to fill Supreme Court vacancies that arose in presidential election years, and 21 times the Senate confirmed the nominee. The general rule is that when there is a vacancy on the nation’s highest court, the political branches will fill it.
At the same time, the Senate has long observed a narrow exception to that rule—one also guided by constitutional concern—and that’s what was in play in 2016. When the nation chooses a president and a Senate, it makes its choice about who wields the power and bears the responsibility to pick and confirm judges. But when the president and Senate have divergent views on judges and judicial philosophy, there’s no clear mandate on what kinds of judges ought to be confirmed. For well over a century—the last exception was Chief Justice Melville Fuller in 1888, during President Cleveland’s first term—the Senate hasn’t confirmed a Supreme Court nominee chosen in an election year by a president of the opposite party. That’s why, in 2016, Mr. McConnell let voters break the stalemate.
It’s especially ill-suited to 2020. Not only does the same party control the White House and the Senate, but the 2016 and 2018 elections were both unusually focused on the issues of constitutional philosophy and judicial selection, owing to the Scalia vacancy and the Democrats’ smear campaign against Brett Kavanaugh. The voters made their choice, sending Donald Trump to the White House with his list of prospective nominees and a Republican majority to the Senate. There’s no stalemate for the voters to break this time around.
As far as I can see Mr Trump and the Republican dominated Senate have an electoral mandate.
Last issue – why have I titled this piece The Biden Rule? (Emphasis added)
The week after President Jimmy Carter lost his 1980 re-election bid, he announced the judicial nomination of a close ally of Senate Judiciary Committee Chairman Ted Kennedy. The nomination sailed through the Senate, which confirmed the First U.S. Circuit Court of Appeals judge 80-10 less than a month later, six weeks before Inauguration Day. That nominee, Stephen Breyer, now sits on the Supreme Court.
Another bit of history: In 1980, Mr. Biden voted to confirm Judge Breyer.
As always with the left – don’t do as I do.