When President Obama nominated Judge Merrick Garland to the Supreme Court in 2016, Senate Majority Leader Mitch McConnell (R-Ky.) refused to consider him, blocking the nominee until after the year’s presidential election.
He said then that “the American people should have a voice in the selection of their next Supreme Court Justice.” The tactic cost Garland his spot on the court.
With his party now in the White House, McConnell said Tuesday he’d try to push through any nomination that President Trump might make to the high court — even if it comes during an election year. Some saw that stance, which McConnell has signaled before, as disingenuous.
McConnell responded to the hypothetical question at a Chamber of Commerce luncheon in Paducah, Ky.
“Should a Supreme Court justice die next year, what will your position be on filling that spot?” an attendee asked, setting up a scenario that would mirror 2016, when Justice Antonin Scalia died suddenly in February.
“Uh, we’d fill it,” McConnell said with a wry, tight-lipped smile.
It’s his most direct comment yet about what would happen if a surprise retirement or death presented McConnell with a 2016 redux, something liberals began to worry over in earnest when Justice Ruth Bader Ginsburg missed work after being diagnosed with lung cancer. (She had surgery and returned to the court in February.)
At the event, which the local news channel WPSD recorded, McConnell said that confirming judges is the best way to have “a long-lasting positive impact on the country.
“Everything else changes,” he said, before adding that, “What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law. That’s the most important thing we’ve done in the country, which cannot be undone.”
After his comments circulated Tuesday evening, McConnell’s critics said it was another example of backhanded partisan gamesmanship.
“History will record McConnell as the true villain of some of the ugliest moments in this period of US history,” Susan Hennessey, the executive editor of the Lawfare blog, said in a tweet.
Some also criticized the humor McConnell used to punctuate his response.
“Senator McConnell’s statements further damage and undermine the Supreme Court at a time when its standing has been significantly diminished in the eyes of the public,” said Kristen Clarke, the executive director of Lawyers’ Committee for Civil Rights Under Law, in a statement. “This is no laughing matter.”
Matthew Yglesias, co-founder of Vox.com, argued that McConnell’s tactics were opportunistic but hardly unique.
“At times, political leaders stake out positions on process issues that seem hypocritical or opportunistic,” he wrote on Twitter. “Mitch McConnell stands out from the pack somewhat in how open and unembarrassed he is about this, though the basic pattern is far from unique.”
But David Popp, McConnell’s spokesman, said the majority leader’s remarks were nothing new.
“What the leader did today is emphasize what he has said since October,” Popp told The Washington Post, referring to comments McConnell made last year in which he left open the possibility that he would help advance a Trump nominee in 2020.
In October, McConnell said at a news conference that his decision to block Garland’s appointment was based on a tradition that opposition parties in control of the Senate do not confirm Supreme Court nominees during presidential election years. He claimed the precedent only applies when different parties control the Senate and the White House — which was the case in 2016, but would not be in 2020.
“The tradition going back to the 1880s has been if a vacancy occurs in a presidential election year, and there is a different party in control of the Senate than the presidency, it is not filled,” McConnell told reporters then.
“Look, it’s practical,” he added. “Think about it. There’s no chance that an opposition party in control of the Senate is going to fill a Supreme Court vacancy occurring in the middle of a presidential election year, and that’s why it hasn’t happened since the 1880s.”
But McConnell’s comments this week have a new resonance since former vice president Joe Biden’s entry into the race for the Democratic nomination. During a recent campaign stop, Biden touted his bipartisan credentials and claimed the public would witness “an epiphany occur among many of my Republican friends.” GOP lawmakers, Biden predicted, would be willing to work with him once Trump left office.
McConnell and Biden do indeed have a history of working with one another, like in 2013, when together they pulled the country back from the fiscal cliff. But much has changed since then, and many saw Biden’s comments as naive, especially since he made no mention of McConnell’s role in keeping Garland off the court.
Ironically, in doing so, McConnell cited the so-called “Biden rule,” a reference to a 1992 speech in which Biden argued that President Bush should delay the hypothetical confirmation of a Supreme Court justice, should an opening occur before that November’s election.
But later in his Tuesday talk, McConnell hinted that he, too, misses the days when Democrats and Republicans got along better. Although lawmakers maintain interparty friendships, McConnell mused, things have pretty gotten ugly outside the Capitol walls.
“Outside the chamber,” he said, “there’s been a serious decline in civility.”