“Give the people a voice in filling this vacancy.”

These were Senate Majority Leader Mitch McConnell’s words in March 2016. After Justice Antonin Scalia’s death, President Barack Obama nominated Merrick Garland as a potential replacement. This nomination went without a Senate hearing, however, because McConnell claimed the position should be filled by the next president’s nominee.

2016 was an election year and the last of Obama’s second term. McConnell said, “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s decision.”

Now, it seems we face a similar situation.

After Justice Ruth Bader Ginsburg’s death on Sept. 18, a seat is open on the court. The election is quickly approaching, and there is far less time between her death and the election than Scalia’s death and the 2016 election.

Despite what he once said, and the election’s nearing date, McConnell insists on voting to fill the vacancy now.

President Donald Trump has selected Judge Amy Coney Barrett as Ginsburg’s potential replacement. At 48 years old, Barrett could serve on the court for decades if approved. She is a conservative favorite whose political and legal philosophy similarly follows that of Scalia’s. She has been a federal judge in the Chicago-based 7th U.S. Circuit Court of Appeals since 2017, and before that, she was a law professor at the University of Notre Dame.

Certainly, Trump is allowed to nominate a candidate. It is his constitutional right as president, just as the Senate has the constitutional right to check that executive power and give or withhold its consent.

Obama nominated a replacement during his last year as president, and Trump has put forth a nominee in his first term’s final months. It is McConnell’s stance that is seen as hypocritical.

He would not entertain Obama’s nomination in 2016, but he now pushes for Barrett’s approval. On the surface, it seems he has gone back on his opinion.

However, we have to consider the Biden Rule.

Throughout history, 25 justice nominations have been made in an election year, with 21 of those being approved. However, all were decided by July in their respective years—long before election day.

These nominees were proposed and approved while the president and Senate majority followed the same political party and, therefore, the same constitutional philosophy. In 2016, President Obama, a democrat, was asking a Senate with a Republican majority to approve or disapprove his nomination. It was a divided government.

The “divided government” explains McConnell’s views of waiting for the next president. He wanted voters to “break the tie” regarding what party should ultimately make the decision.

This unwritten rule came from none other than then-Senator, now Democratic presidential candidate Joe Biden. In 1992, Biden urged President George H.W. Bush to abstain from putting forth a nominee. It was a divided government, with Bush on his way out, so Biden claimed the voters should have their say by electing a president and senators who would go on to make the vacancy decision.

McConnell’s stance in 2016 followed this idea. It also explains his current position.

We currently do not have a split government. Trump is Republican, and his party holds the majority in the Senate. Trump could remain in office for another term. The election’s outcome could remain in Republican favor. The Constitution affords both branches the power to move on with this potential appointment, so if Republicans have sway in both branches, they can do as they please.

The Biden Rule is not in effect since the government power is not split between parties.

But McConnell cannot act alone. He would still need the Republican and conservative-leaning senators to vote with him, which calls into question their views on filling the empty seat.

Senator Lindsey Graham held the same position as McConnell in 2016 and has swiftly sided with him again. He made his position clear after Obama’s nomination, saying “I want you to use my words against me.” He supported the Biden Rule. Him going back on that previous stance and supporting Trump’s nominee is reflective of McConnell and has resulted in similar backlash.

Some Republicans, like Senator Susan Collins, take no issue with starting the process. They can begin considering Barrett’s qualifications, but any vote resulting in appointment should be held after the election.

The situation is not entirely unprecedented, nor unconstitutional, but the timing is complicated. The outcome of the election will influence this highly critical decision.

If Barrett is approved, the justices will sit 6-3 on the conservative side. This leaning will most likely outlast Trump as president, even if he is elected to serve another term. This nomination would hit even harder especially in the aftermath of Ginsburg’s death, a liberal icon on the court and for the country.

Controversial issues like Roe v. Wade will most likely be questioned—and potentially reversed. The court could possibly end the Affordable Care Act. Regardless of one’s opinion on these hot button issues, we can all acknowledge they would affect the country tremendously, even if that impact was just in polarizing our politics more.

In a sense, McConnell’s right. Republicans have the majority and all the power to move forward with Barrett’s appointment.

But with a month left until the election, should filling the vacancy be put on the backburner? Should voters play a role in who is nominated, through the means of their presidential selection?

Biden is currently ahead in the polls. Of course, we all know having the popular vote is not enough to win the presidency, but it should be enough to make the Senate pause and consider what the American people want.

At the end of the day, politicians serve the people. They are supposed to represent the people. What if this election results in a democratic majority? What if it leads to a split government? Either of these scenarios could result in a drastically different justice appointment.

There’s a very human aspect I think we forget, at least that I forget. Our leaders and elected officials are not robots acting solely by the word of law. They are human, with their own agendas and instincts and biases and expectations. They have their opinions and beliefs and desires just as the rest of us do.

In our inherently competitive, individualistic society, there is a drive to get ahead, to push yourself, your beliefs and your wants ahead. Those in government face this very human reality, while bearing the weight of a country and the responsibility of deciding what’s best for that country.

This applies to Trump’s nomination of Barrett, the Senate’s response to that nomination, the election’s outcome and the resulting decisions made by the Supreme Court, with or without Barrett.

If the election results in a second term for Trump, then the rush to appoint Barrett is unnecessary. He will have the time to push her nomination, or a different one, at the start of his second term. Regardless of the Senate’s party leaning, he will be in charge of nominations.

However, if Trump does not win, his push to fill the seat seems like a desperate last attempt to wield executive power. He has already appointed two justices. He has already influenced the Supreme Court. If he wants what is best for America, he should listen to its citizens, whatever that outcome might be.

I would hope, regardless of the election, that our leaders would choose to act in a way that’s best for our country. I hope they would act according to the voters’ input and the election’s outcome.

After all, what is democracy without the voice of the people?

Maddie Peters can be reached at pete9542@stthomas.edu.