Bench Memos

Law & the Courts

Mitch McConnell’s Position Is Entirely Consistent with His Position in 2016

In this essay back in January (as well as in this post from last December), I addressed and refuted the charge that Republican leader Mitch McConnell’s vow to keep the Scalia seat open through the 2016 elections was inconsistent with his promise to move promptly to fill a vacancy if one arose this year. Because that lazy charge is widespread, I figured I’d briefly highlight why it’s wrong (and invite any skeptical readers to examine my fuller account, along with linked support, in my essay and post):

1. 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, not coincidentally, was also the configuration when Joe Biden in 1992 threatened not to hold a hearing if a vacancy arose and in 2007 (16 months in advance of the election) when Chuck Schumer made a similar threat.

2. In explaining his position at his very first press conference on the Scalia vacancy in 2016, McConnell emphasized this opposite-party configuration:

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….

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. President Obama’s former White House counsel candidly acknowledged that she would have recommended that Senate Democrats take exactly the course of action that McConnell recommended if (in McConnell’s phrase) “the shoe was on the other foot.”

Addendum: For reasons that puzzle me, some folks seem to imagine that political slogans used by Republicans in 2016, such as “Let the people decide,” were somehow a distinct argument. 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.