Law & the Courts

McConnell’s Supreme Court Tactics: Politics 101

Senate Majority Leader Mitch McConnell speaks to reporters after the weekly policy lunch in Washington, D.C., May 14, 2019. (Kevin Lamarque/Reuters)
When the president and the Senate majority are from the same party, look for the swift confirmation of a Supreme Court nominee.

When Justice Antonin Scalia died in early 2016, Senate majority leader Mitch McConnell vowed to keep the resulting Supreme Court vacancy open through the elections that November. If a vacancy on the Court arises in 2020, McConnell promises that the Senate will move promptly to confirm President Trump’s nominee.

Many folks on the left and in the media are accusing McConnell of the dreaded sin of hypocrisy. But his positions are in fact entirely consistent.

A defining feature of the 2016 battle over the Scalia vacancy was that President Obama and the Senate majority were from opposing political parties. That was the first vacancy since 1991 — when Justice Thurgood Marshall retired while George H. W. Bush was president — in which a president of one party would be making a nomination to a Senate controlled by the opposing party.

This opposite-party configuration obviously presents the greatest potential for conflict between the president and the Senate. It was in this same opposite-party context in a presidential-election year, way back in 1992, that Joe Biden, then chairman of the Senate Judiciary Committee, delivered a lengthy Senate floor statement in which he urged President Bush not to make a nomination if a Supreme Court vacancy arose, and he threatened not to hold a hearing on any nominee until after the election. It was in this same context — anticipating a Supreme Court nomination by a president of one party to a Senate controlled by the other party — that Democratic senator Chuck Schumer publicly stated in July 2007 that the Senate “should not confirm another U.S. Supreme Court nominee under President [George W.] Bush ‘except in extraordinary circumstances.’” And, indeed, Kathryn Ruemmler, Obama’s White House counsel from 2011 to 2014, candidly acknowledged that if the political roles had been reversed — that is, a Republican president and a Democratic majority in the Senate — she would have recommended that Senate Democrats take exactly the course that McConnell pursued.

At his first press conference after Scalia’s death, McConnell explicitly tied his position that “the next president should make this nomination” to the fact that the Senate majority was “of a different party from the president.” In context, it’s precisely because the presidency and Senate were held by members of different political parties that McConnell proposed that “the nomination should be made by the president the people elect in the [2016] election.” McConnell further made clear that he understood that Biden’s and Schumer’s threats arose, and would have been applied, in that same opposite-party context.

It’s unimaginable that Biden in 1992 or Schumer in 2007 would have made their threats if a Democrat were president. It’s likewise unimaginable that Mitch McConnell would have committed to keep the Scalia vacancy open in 2016 if a Republican were president, and McConnell didn’t pretend otherwise. In short, it is entirely consistent with his position in 2016 for McConnell to take the position now that a Republican-controlled Senate would move expeditiously to confirm a Supreme Court nomination made by a same-party president if a vacancy arises in 2020. That’s Politics 101, not hypocrisy.

Some of McConnell’s attackers contend that political slogans used by Republicans in 2016, such as “Let the people decide,” must apply now. But those slogans were distillations of the fuller position that McConnell presented, founded on the essential predicate that the Senate majority was “of a different party from the president.” To strip those slogans out of the context that defined their meaning would be like claiming that Republicans who adopted the rallying cry of “Reelect the President” in favor of Richard Nixon in 1972 were hypocrites if they did not support Jimmy Carter’s reelection in 1980.

Ironically, there is one set of voices from 2016 that might earn the label of “hypocrites” if a Supreme Court vacancy arises in 2020: the hundreds of liberal law professors who signed their names to a letter claiming — absurdly — that the Senate had a “constitutional duty to give President Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Somehow I don’t expect that those professors will be expressing that position in 2020.

Mitch McConnell fulfilled his vow in 2016. As a result, Donald Trump was able to name Neil Gorsuch to fill Scalia’s seat in 2017. That was a momentous victory for conservatives. We will see if McConnell has the opportunity to deliver another huge victory in 2020.

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