Of Course Mitch McConnell Would Allow a Vote on a Trump Nominee

The Merrick Garland precedent is power politics, nothing more.

CNN (“McConnell changes course after opposing SCOTUS nominees in presidential election year“):

Senate Majority Leader Mitch McConnell left open the possibility of confirming a Supreme Court nominee in 2020 if Republicans still control the chamber and there’s a vacancy on the court, marking a shift over how he treated then-President Barack Obama’s nominee in 2016.

Speaking to both Fox News and CBS News on Sunday, McConnell would not rule out seeking to confirm a nominee if there is a Supreme Court vacancy in the final year of President Donald Trump’s first term in 2020, assuming the GOP holds onto the Senate in this November’s midterms. McConnell instead seemed to suggest that presidents don’t get Supreme Court nominees confirmed in a presidential election year — if the Senate is controlled by the opposite political party.

“You have to go back to 1880 to find the last time a Senate controlled by a party different from the president filled a vacancy on the Supreme Court that was created in the middle of a presidential election year,” McConnell said on Fox News. “That’s been the history,”

Asked directly if he would allow a nominee to be confirmed in 2020, McConnell repeatedly sidestepped the question.

“The answer to your question is we will see if there’s a vacancy in 2020,” he said.

Observers from the left are, quite naturally, pointing to the hypocrisy.

HuffPost (“Mitch McConnell Refuses To Say He Wouldn’t Confirm A Supreme Court Nominee In 2020“):

Senate Majority Leader Mitch McConnell (R-Ky.) has been peddling a new story about his decision to block President Barack Obama’s nomination of Merrick Garland to the Supreme Court in 2016.

McConnell had declined to hold any hearings on Garland after he was nominated in March 2016 following the death of Supreme Court Justice Antonin Scalia. The Senate leader claimed the vacancy shouldn’t be filled in the months leading up to a presidential election.

But on Sunday, McConnell offered a revised version of his initial reasoning and refused to say he wouldn’t confirm a potential Supreme Court nominee from President Donald Trump in 2020.

Salon (“Mitch McConnell got called out for his Supreme Court hypocrisy on two different Sunday shows“):

While taking a victory lap the morning after Brett Kavanaugh became the most narrowly confirmed Supreme Court justice in history, Senate Majority Leader Mitch McConnell was called out by two different interviewers for his role in blocking President Barack Obama’s Supreme Court nominee, Merrick Garland, a hearing.

CBS News’ Face the Nation host John Dickerson confronted McConnell on Sunday about his refusal to hear out Garland’s nomination, claiming that the obstruction had “kicked off a new stage in the partisanship associated with Supreme Court nominees.”

But McConnell continued to defend his unprecedented 2016 decision by arguing that presidential year nominations are inappropriate.

“Yeah they don’t know much history,” McConnell shot back. “You have to go back to 1880 to find the last time a Senate controlled by a different party from the president confirmed a Supreme Court justice to a vacancy created in the middle of a presidential election. They also conveniently forgotten that Joe Biden said in 1992 when he was chairman of the Judiciary Committee, the Democrats control the Senate, Republican in the White House. If a vacancy occurred they wouldn’t fill it. They also conveniently forgot that Chuck Schumer and Harry Reid, 18 months before the end of Bush 43 said if a Supreme Court vacancy occurred they wouldn’t feel it…”

But Dickerson was prepared with historical facts.

Dickerson pointed out that, “in 1956 Eisenhower nominated Brennan the- the 84th Congress was a Democrat controlled and also on the Biden rule, Joe Biden was talking in the abstract. There was no nominee, no nominee was blocked and he said to not have the nomination come up before the election, but that it could come up after the election. And so what Democrats say when they hear you doing this is they say he’s creating new rules to essentially do what he wants to do. And as you’ve written in your book “The Long Game” when you do that, it actually hurts democracy.”

But this is all rather silly. There was no principle involved in blocking Merrick Garland; it was power politics.

Amusingly, my reaction on Twitter yesterday morning—before hearing or reading McConnell’s explanation—almost exactly paralleled it:

I meant that as the opposite of a defense of McConnell and as an amplification of Blake Hounshell’s point: it’s all about power. Anything else is pretense.

I expect the Republicans to hold the Senate in next month’s midterms. If one of the older Justices resigns (Clarence Thomas is the only plausible possibility there and, at 70, I don’t see it) or, tragically, passes away in 2019 or 2020, I fully expect McConnell to gleefully ram the confirmation through. If the Democrats take control, I fully expect the Garland precedent to hold.

This is hardball politics in the extreme and I think bad for the country. We elect Presidents to fixed terms and they’re entitled to exercise their prerogatives to the end, with perhaps the exception of an impeachment process being underway or being a true lame duck (that is, having a successor President-Elect in the wings). In the event that the opposite party controls the Senate, especially by a significant margin, then Presidents should expect to have to temper their choices. Barack Obama did that with the appointment of Garland, who was both relatively moderate ideologically and older than most recent SCOTUS appointees.

Regardless, McConnell isn’t being hypocritical here. Shepherding a Republican Justice through confirmation in a Presidential election year is perfectly consistent with the Garland precedent.

FILED UNDER: Law and the Courts, Supreme Court, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Teve says:

    Really need some kinda “Disturbing Image Warning” before the closeup on his gross face.

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  2. SKI says:

    Slight correction: if the Dems take the Senate, it won’t be the Garland precedent if by that you mean that no nominees in an election year when the opposite party holds the Senate. It will be no nominees for Trump – period.

    McConnell has destroyed any pretense of having a functioning Senate that has traditions and norms.

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  3. Kathy says:

    Regardless, McConnell isn’t being hypocritical here.

    Yes, he is. Or at least he’s admitting to being hypocritical with the Garland nomination in 2016.

    He took a very big gamble and won. Call it the equivalent of borrowing $1,000,000 to play the lottery and hitting the jackpot. If Clinton had won, I think McConnell would have said “Ok, we’ll hold hearings and a vote on Merrick Garland now.”

    Finding hypocrisy in a politician is as shocking as finding Catholics in the Vatican. But most politicians aren’t so blatant about it.

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  4. EddieInCA says:

    If the Dems retake the senate and another Vacancy becomes open, I would fully support keeping the seat open unitl 2020. THAT’S the precedent that McConnell set. Garland’s seat was open for over 400 days.

    I look forward to that day.

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  5. Kylopod says:

    @Kathy: Right, it’s hypocrisy as long he preaches something that he does not practice–and that’s definitely the case here. He claimed he was blocking the nomination because of some “rule” that a president shouldn’t get to appoint a justice in an election year. Now, he’s talking about blatantly violating that “rule” as long as it benefits his own team.

    If he’d admitted from the start it was a power play, it wouldn’t be hypocrisy. He didn’t do that–he still feels the need to pretend his actions are based on some kind of higher principles. That is the essence of hypocrisy.

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  6. An Interested Party says:

    Regardless, McConnell isn’t being hypocritical here. Shepherding a Republican Justice through confirmation in a Presidential election year is perfectly consistent with the Garland precedent.

    You are being facetious, right?

    McConnell is full of $hit, and when the Dems retake the Senate, he should be treated in the same ruthless way he has treated them…it’ll be amusing to see his howls of protests about “breaking norms” and other such nonsense…

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  7. Gustopher says:

    It’s not hypocritical. The new norm is “if we can do something, we will.”

    If the Democrats take the Senate in 2018, this may be considered problematic by some, but it’s the new normal.

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  8. PJ says:

    Democrats should pack the court.

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  9. SKI says:

    @PJ:

    Democrats should pack the court.


    Absolutely not!
    That would be wrong and short-sighted.

    Democrats should recognize that time and population growth means that we need to update the Federal Court System. We should split the 9th into two circuits and restructure SCOTUS to have a single Justice for each Circuit, with the Chief Justice having responsibility not for a particular Circuit but for overall administration of the Federal Court System.

    In the interests of comity, we should agree to add only 2 Justice’s per Congress until we get to the needed 15.

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  10. Jc says:

    Wish we could just change where all senators and congressmen serve 4 year terms on same cycle as the President. Then every 4 years you have a defacto referendum vote on leadership across all branches and end up with a functioning government. I think you are seeing the start of the decline of our current system

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  11. Raoul says:

    In 1991 with presidential election looming a Democratic senate confirmed a Republican presidential nominee. Bush nominated Thomas and the judicial senate hearing was led by Biden. So yes, the composition of the current Supreme Court is constructed by different standards.

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  12. Scott F. says:

    @Kylopod:

    That’s the key – the hypocrisy isn’t in a possible violation of some principle in 2020, it is in claiming that the treatment of Garland was based on principle and not naked power politics.

    And my bedtime prayers for the next couple of years will be asking for some sweet comeuppance to come ol’ Mitch McConnell’s way, because dramatic tropes tell me the worst villains get the most heinous paybacks and the good people of this country really need some catharsis.

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  13. Guarneri says:

    “This is hardball politics in the extreme and I think bad for the country.”

    Ya don’t say. To quote a recent president: “I won.” And then there is Harry Reid’s nuclear option, which ultimately bit him in the arse. And then we have Harry Reid lying about Romney’s payment of taxes. “He didn’t win, did he?” was his rationale.

    And that’s just what came to mind in 30 seconds. This has been going on for quite awhile. Yes, it stinks. But spare me the juvenile handwringing and gnashing of teeth, commenters.

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  14. An Interested Party says:

    To quote a recent president: “I won.”

    Somebody remind me, what’s the most ruthless thing Obama ever did?

    And then there is Harry Reid’s nuclear option, which ultimately bit him in the arse.

    As if McConnell wouldn’t have gotten rid of the filibuster on his own once the GOP regained the majority? Please…

    This has been going on for quite awhile. Yes, it stinks. But spare me the juvenile handwringing and gnashing of teeth, commenters.

    Bullshit…no one ever did what McConnell did to Merrick Garland…and you would know all about juvenile handwringing and gnashing of teeth as you did enough of both when Obama was president…

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  15. Jim Brown 32 says:

    @SKI: They absolutely should add 2 slots to the SC. Republicans have engineered a 3 decade long strategy to garner a majority on the court ..using scorched earth tactics over the past 8 years to do it.

    Nothing would give them a better Geraldo-style commupace than to expend all these resources and capital to find there’s no treasure in the vault. The court majority is the source of the majority of their bad behavior. It must be taken away for them to focus more resources into legislating.

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  16. Just nutha ignint cracker says:

    @Jim Brown 32: The GOP focusing more resources into legislating. And Dr. Joyner was saying comedy is dead. Hee hee hee.

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