In an unprecedented move, Senate Majority Leader Mitch McConnell released the following statement just one hour after the sudden passing of divisive Supreme Court Justice Antonin Scalia: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” While there have been Senate objections to SCOTUS appointees in the past under similar circumstances, launching an instant, preemptive rejection of any candidate the president chooses is a first.
And after a long hiatus, Last Week Tonight’s John Oliver took time on his late-night HBO program first to honor Scalia for being a “hugely significant justice” whose “death is the end of an era on the Supreme Court,” before addressing the elephant in the room: “The fact is, there is now a huge vacancy on the Supreme Court that needs to be filled—or, if you listened to the Republicans in the last 24 hours, not,” said Oliver.
He then threw to a clip of Republican presidential candidate Donald Trump endorsing Sen. McConnell’s historic stand during last night’s South Carolina debate, saying, “I think it’s up to Mitch McConnell and everybody else to stop it. It’s called delay, delay, delay.” “Well, that does not bode well because Mitch McConnell is actually pretty good at delaying things for people—whether it’s legislation, court appointments, or orgasms,” joked Oliver. “Believe me, if you ever need to ‘delay, delay, delay’ [an orgasm], just picture [McConnell’s] face and I guarantee you nothing will happen possibly for the rest of your life.”
Oliver then explored the “strange, unwritten rule” that the Senate is using to justify the block: the “Thurmond Rule,” which says that no president in the last six months of their presidency should be able to appoint a judge that has a lifetime appointment.
“Yes, the Strom Thurmond Rule,” Oliver said. “Now, I’m not surprised that there is one, it’s just I thought it would always be about the amount of hush money required to keep your secret family a secret, or how racist an old person is allowed to be before their age is no longer an excuse.
“If Mitch McConnell does want to invoke this rule, he will need to be careful because during the George W. Bush years, when Democrats were trying to pull this Thurmond Rule bullshit to prevent lower court appointments, he was pretty categorical about it,” he added.
He then threw to a 2008 clip of Sen. McConnell addressing the Senate:
“Our Democratic colleagues continually talk about the so-called Thurmond Rule, under which the Senate supposedly stops confirming judges in a presidential election year,” said McConnell. “This seeming obsession with this rule that doesn’t exist is just an excuse for our colleagues to run out the clock on qualified nominees who are waiting to fill badly-needed vacancies.”
Oops. Sen. McConnell also stated in 2005 that he supported a sitting president’s absolute right to nominate judges, although that—again—was when a Republican sat in the White House.
“Yes, it seems the ‘Thurmond Rule’ is a bit like God: When things are going your way, you don’t bring it up a lot, but as soon as you’re in trouble it is all that you talk about,” quipped Oliver.
Of course, since the Thurmond Rule applies to the last six months of a president’s term, it wouldn’t even come into effect until July 20. Either way, to outright deny President Obama’s choice to a fair nomination process would likely go against the wishes of the late Antonin Scalia, who, as Sen. Marco Rubio stated in the recent South Carolina debate, understood that the Constitution was not a “living and breathing” document and was meant to be interpreted by its “original meaning.”
“He’s right,” said Oliver. “Scalia loved the letter of the law—so let’s look at the letter as it applies here, shall we? Article II, Section 2 of the Constitution says, ‘[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court. That’s the president. This president. There is nothing in the Constitution about you getting to delay him for a year because of some bullshit tradition.”
He continued, “So to Senate Republicans, I say this: If you really loved Antonin Scalia, you wouldn’t honor his memory by desecrating the thing he loved the most. Think of Scalia like a Britta filter or a child’s hamster: Why don’t you honor his entire reason for being by swiftly and efficiently replacing him.”