Bobby Jindal, in his Wall Street Journal op-ed, is on the right track, but wide of the mark. He opened with
President Trump’s determination to fill the Supreme Court vacancy has enraged Democrats. Senate Minority Leader Chuck Schumer ominously warns that if Justice Ruth Bader Ginsburg is replaced and Democrats gain a Senate majority, “nothing is off the table.” It’s not clear what was off the table before: Democrats had already threatened to end the filibuster, ignore pay-as-you-go rules, make the District of Columbia and Puerto Rico states and pack the court.
So far, so good, but then he strays into irrelevancies. “The Biden Rule,” “Ginsburg’s dying wish,” “Democratic distortion,” and on and on.
It’s foolish to talk about this Senator’s rule or that one’s, or Justices’ desires, or Democrat threats. The only “rules” that matter are those in our Constitution that require the President to nominate candidates for a variety of offices—here a Supreme Court Justice—and for the Senate to advise and consent/withhold consent for those nominees.
The practice, too, has been—nearly 30 times—for Presidents to nominate Justices in election years and for the Senate to confirm or choose not to confirm those nominees. Indeed, on three occasions, the losing incumbent President has nominated Justices after the election, and on those occasions, the Senate confirmed/withheld confirmation of those nominees before the newly elected President was inaugurated.