Bench Memos

Law & the Courts

Left Desperately Distorts Mitch McConnell on Scalia Vacancy

Fearful that a Supreme Court vacancy will arise in 2020, the Left is desperately distorting Senate majority leader Mitch McConnell’s decision to keep the Scalia vacancy open through the election year of 2016. And politically savvy reporters who ought to know better are somehow embracing the distortion.

Let’s run through the basics:

1. After Justice Scalia died in February 2016, three essential facts combined to drive Senate Republicans to commit to keep the resulting vacancy open through the November elections.

First and most importantly, President Obama and the Senate majority were from opposing political parties. Indeed, this was the first vacancy since Justice Thurgood Marshall’s resignation in 1991 in which a president of one party would be making a nomination to a Senate controlled by the opposing party. The confirmation battles had markedly escalated since then, and this opposite-party configuration obviously presented the greatest potential for conflict.

Second, a successful appointment to the vacancy threatened to shift the ideological makeup of the Supreme Court. It would move the Court from what had long been a 4-1-4 divide to a dominant liberal majority. This second feature, it’s important to emphasize, is intertwined with the first: It’s only in the opposite-party context that a president’s nominee to the Supreme Court would be expected to move the Court in an ideological direction that the Senate majority disfavors.

Third, the vacancy arose in a presidential-election year. It’s no coincidence that it was in this same opposite-party context in a presidential-election year, way back in 1992, that Senator Joe Biden, then chairman of the Senate Judiciary Committee, delivered a Senate floor statement in which he urged President George H.W. Bush not to make a nomination if a Supreme Court vacancy arose and threatened not to hold a hearing on any nominee until after the election. It was also in this same context—anticipating a Supreme Court nomination by a president of the opposite party in an election year—that Democratic senator Chuck Schumer, in late July 2007, publicly stated that the Senate “should not confirm another U.S. Supreme Court nominee under President [George W.] Bush ‘except in extraordinary circumstances.’”

To reiterate the overwhelming significance of the opposite-party context: Just as it’s unimaginable that Joe Biden in 1992 or Chuck Schumer in 2007 would have made their threats if a Democrat were president, it’s unimaginable that Mitch McConnell would have committed to keep the Scalia vacancy open if a Republican were president. (I’ll be amused to see who professes to be shocked by the elementary reality that the political process of Senate confirmation involves politics.)

2. Here is what Senate majority leader McConnell said at his first press conference in February 2016 after returning from the Senate recess during which Scalia died:

What’s the way forward? And as you all know, I have the view and expressed it early on that the next president should make this nomination. The — that certainly is supported by precedent. You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year.

In 1988, Justice Kennedy in early ’88 was confirmed, but that was a vacancy created six months before that to which Bork was nominated and subsequently defeated; [Douglas] Ginsburg was nominated and subsequently withdrew. The vacancy had existed for quite some time prior to the presidential election.

So the question is: Who should make the decision? And my view, and I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president the people elect in the election that’s underway right now. In fact, we’ve had three of them already in Iowa, New Hampshire and South Carolina. There’s one going on today in Nevada. The election is well underway. So, I believe the overwhelming view of the Republican Conference of the Senate, in the Senate, is that this nomination should not be filled, this vacancy should not be filled by this lame-duck president.

That was the view of Joe Biden when he was chairman of the Judiciary Committee in 1992. Chuck Schumer who I assume will be my counterpart next year had the view that you shouldn’t fill a vacancy in the last 18 months going into a presidential election year. And certainly that was Senator Reid’s view as well in a different era.

McConnell added:

We know what would happen if the shoe was on the other foot. We know what would happen. A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.

3. In short, from the outset McConnell expressly 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.

Thus, it is entirely consistent with his position in 2016 for McConnell to take the position now that a Republican-controlled Senate would confirm a Supreme Court nomination made by a same-party president if a vacancy arises in 2020. Again, it’s unimaginable that Joe Biden or Chuck Schumer would have made their threats against a Democratic president.

4. Let’s now look at a couple recent examples of the Left’s distortions:

The title of this New York Times article on Saturday by NYT’s veteran Washington reporter Carl Hulse asks, “Would Republicans Follow Their Garland Rule for the Court in 2020?” According to Hulse, “Let the people decide” was “the Republican mantra” on the Scalia vacancy in 2016. Ten paragraphs in, Hulse states that “Republicans say the difference between 2016 and 2020 is one of political alignment,” but he hastens to assert that “in 2016, Republicans focused most of their argument against taking up Mr. Obama’s nominee not on party control, but on the basis of the approaching presidential election.” He then warns that Republicans “would face thunderous charges of hypocrisy if they took up a nomination next year.”

Any such “thunderous charges of hypocrisy” would be badly confused. Political slogans like “Let the people decide” were distillations of the fuller position that McConnell presented, based on the predicate that the Senate majority was “of a different party from the president.” The assertion that “Republicans focused most of their argument against taking up Mr. Obama’s nominee not on party control, but on the basis of the approaching presidential election” presents a false dichotomy: McConnell’s argument was that because party control of the presidency and the Senate was divided, the nomination should be made by whoever was elected in November 2016.

Here’s how Alexander Bolton, writing in The Hill, summarizes McConnell’s position on the Scalia vacancy: “McConnell argued at the time that voters should have a chance to weigh in on the balance of the court.” Ah, yes, that really captures McConnell’s argument, doesn’t it? Bolton goes on to state that “[p]rogressive groups say McConnell should apply that same thinking if there is a vacancy between now and Election Day,” and he quotes a progressive activist’s assertion that McConnell claimed in 2016 that “the American people should have a say in the election who the next Supreme Court justice is.” He nowhere provides the context that severely limits that claim, nor does he present anyone who disputes it.

Stripping political slogans out of the context that defined their meaning produces absurdities. “Re-elect the President” was the rallying cry of Republicans in favor of Richard Nixon in 1972. Did those same Republicans somehow invite “thunderous charges of hypocrisy” when they failed to repeat the mantra “Re-elect the President” during Jimmy Carter’s re-election campaign in 1980?

5. If there is one group that is actually at risk of earning “thunderous charges of hypocrisy,” it would be the hundreds of law professors who put their names to a letter claiming that the Senate has a “constitutional duty to give President Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Their position was, to be sure, indefensible (and in some instances—e.g., Erwin Chemerinsky’s—contrary to their own previously stated positions), but so far as I’m aware, none of them other than Larry Tribe has repudiated it. So surely they would maintain that position amidst a confirmation battle in 2020, right? Right?


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