So I think there are several factors contributing to how liberals are viewing this court opening, including the obvious parallel to Merrick Garland's nomination, the ample examples of bad faith and violation of norms by congressional Republicans in the last 12 years, and pure outcome-based consideration (a 6-3 conservative court). I want to focus on that last one, which to me suggests that an expansion of the court makes a lot of sense. I will posit that despite the mitigating factors you mentioned, the composition of the court does matter. While justices do sometimes defect and there can be surprising decisions, more often than not politically charged cases are decided on predictable votes. The simple fact is Democrats have controlled the White House for 16 of the last 30 years, and yet find themselves outnumbered 2:1 on the Supreme Court. In other words, the composition of the court is not aligned with any democratic process. It is, as you said, a roll of the dice, with every opening on the court playing out as a high stakes no holds barred conflict. That doesn't seem ideal. If the court were expanded to 15 (preferably even with age or term limits), turnover would be more regular and the composition of the court would shift more fluidly. And given the higher frequency of vacancies and reduced stakes that implies, it would seem unlikely that either the public or the Senate could sustain the level of attention needed for the three ring circus nomination processes we have now. If you want to improve the legitimacy of the court, fairness needs to be a consideration.
I think there might be a false dichotomy presented here: given the choice between the essentially fungible Biden rule or McConnell rule, the Senate majority will simply pick the one that favors them more. I will assert these rules are not equally good, and furthermore that neither is the best possible rule for accomplishing the stated ends.
As noted, the Biden Rule - which should perhaps more accurately be termed the Thurmond Rule given its roots from 1968 - has stood as a semi-precedent for a considerable amount of time. The recent and seemingly arbitrary clause of "in a divided government" throws a new corollary on that precedent; it is the infield fly rule, the en passant move, the "except on every third Sunday" fine print, introduced at just such a time that the introducer sees maximum benefit.
But argument from tradition is hardly compelling, particularly in an age of norm-defying politics. One needs to dig deeper into the intention and spirit of the rule. Fundamentally, the McConnell rule appeals to the notion that the current will of the people should be expressed more loudly than a lame-duck president's final actions. In his most recent letter, McConnell appeals to the notion that not only are the Senate and President of the same party, but furthermore that the Senate majority increased in 2018. Let's take him at his word, and ask, "Does same-party representation in Senate and Presidency accurately reflect the will of the people in an election year? Does growth of that representation also reflect that will?"
Those who would argue yes would look no further than the midterm election as proof that the pulse of the nation had been accurately measured - if they didn't like the guy in charge, they wouldn't have kept his friends in the Senate, right? Unfortunately, the Senate has 6-year terms, which by definition means only a fraction of the people have a voice; not every state can have a Senator come due for election at every midterm.
Moreover, with only 1/3 of the Senate at stake in a given midterm, there can be immense statistical bias. The 2016 Senate saw 52 Republicans and 46 Democrats; however, in the 2018 election, 24 Democrats were fighting for their seats, while only 9 Republicans did so. Assuming a 33% turnover in both parties, one would naturally expect 8 Democratic seats to flip, but only 3 Republicans. That results in a net gain of 5 seats for Republicans, and a 57-41 split in the Senate. Now this bias will flip back in 2020, as a majority of Senate seats coming up for re-election are Republican (23-to-12), but that's further evidence that a single Senate election cannot accurately reflect the will of the people.
As Republican Senate leader for the past 14 years, McConnell is no stranger to the above calculations. It is not unreasonable to speculate that he is knowingly exploiting his letter's mathematical fallacy to cover his raw realpolitik - "justice is merely the will of the stronger" - with a thin veneer of virtue. At the risk of ad hominem, it certainly wouldn't be out of character for him.
If, on the other hand, we do take him at his word, there should be a better way to measure the pulse of the nation at midterm elections: an office that is re-elected every two years, thereby ensuring all states have a voice and no party bias can occur. If any modification needs to be made to the Biden-Thurmond rule to more accurately reflect the updated and most current will of the people, it should be whether the House of Representatives and President are of the same party.
So I think there are several factors contributing to how liberals are viewing this court opening, including the obvious parallel to Merrick Garland's nomination, the ample examples of bad faith and violation of norms by congressional Republicans in the last 12 years, and pure outcome-based consideration (a 6-3 conservative court). I want to focus on that last one, which to me suggests that an expansion of the court makes a lot of sense. I will posit that despite the mitigating factors you mentioned, the composition of the court does matter. While justices do sometimes defect and there can be surprising decisions, more often than not politically charged cases are decided on predictable votes. The simple fact is Democrats have controlled the White House for 16 of the last 30 years, and yet find themselves outnumbered 2:1 on the Supreme Court. In other words, the composition of the court is not aligned with any democratic process. It is, as you said, a roll of the dice, with every opening on the court playing out as a high stakes no holds barred conflict. That doesn't seem ideal. If the court were expanded to 15 (preferably even with age or term limits), turnover would be more regular and the composition of the court would shift more fluidly. And given the higher frequency of vacancies and reduced stakes that implies, it would seem unlikely that either the public or the Senate could sustain the level of attention needed for the three ring circus nomination processes we have now. If you want to improve the legitimacy of the court, fairness needs to be a consideration.
I think there might be a false dichotomy presented here: given the choice between the essentially fungible Biden rule or McConnell rule, the Senate majority will simply pick the one that favors them more. I will assert these rules are not equally good, and furthermore that neither is the best possible rule for accomplishing the stated ends.
As noted, the Biden Rule - which should perhaps more accurately be termed the Thurmond Rule given its roots from 1968 - has stood as a semi-precedent for a considerable amount of time. The recent and seemingly arbitrary clause of "in a divided government" throws a new corollary on that precedent; it is the infield fly rule, the en passant move, the "except on every third Sunday" fine print, introduced at just such a time that the introducer sees maximum benefit.
But argument from tradition is hardly compelling, particularly in an age of norm-defying politics. One needs to dig deeper into the intention and spirit of the rule. Fundamentally, the McConnell rule appeals to the notion that the current will of the people should be expressed more loudly than a lame-duck president's final actions. In his most recent letter, McConnell appeals to the notion that not only are the Senate and President of the same party, but furthermore that the Senate majority increased in 2018. Let's take him at his word, and ask, "Does same-party representation in Senate and Presidency accurately reflect the will of the people in an election year? Does growth of that representation also reflect that will?"
Those who would argue yes would look no further than the midterm election as proof that the pulse of the nation had been accurately measured - if they didn't like the guy in charge, they wouldn't have kept his friends in the Senate, right? Unfortunately, the Senate has 6-year terms, which by definition means only a fraction of the people have a voice; not every state can have a Senator come due for election at every midterm.
Moreover, with only 1/3 of the Senate at stake in a given midterm, there can be immense statistical bias. The 2016 Senate saw 52 Republicans and 46 Democrats; however, in the 2018 election, 24 Democrats were fighting for their seats, while only 9 Republicans did so. Assuming a 33% turnover in both parties, one would naturally expect 8 Democratic seats to flip, but only 3 Republicans. That results in a net gain of 5 seats for Republicans, and a 57-41 split in the Senate. Now this bias will flip back in 2020, as a majority of Senate seats coming up for re-election are Republican (23-to-12), but that's further evidence that a single Senate election cannot accurately reflect the will of the people.
As Republican Senate leader for the past 14 years, McConnell is no stranger to the above calculations. It is not unreasonable to speculate that he is knowingly exploiting his letter's mathematical fallacy to cover his raw realpolitik - "justice is merely the will of the stronger" - with a thin veneer of virtue. At the risk of ad hominem, it certainly wouldn't be out of character for him.
If, on the other hand, we do take him at his word, there should be a better way to measure the pulse of the nation at midterm elections: an office that is re-elected every two years, thereby ensuring all states have a voice and no party bias can occur. If any modification needs to be made to the Biden-Thurmond rule to more accurately reflect the updated and most current will of the people, it should be whether the House of Representatives and President are of the same party.