The Washington Post joins a host of media outlets this morning in contending that Mitch McConnell has “reversed” his position on considering Supreme Court appointments in presidential election years. McConnell said last night that he would “fill” any Supreme Court vacancy that arose next year. This, apparently, is “hypocritical” given his refusal to acquiesce to the nomination of Merrick Garland back in 2016.
Trouble is, McConnell has not actually reversed his position, which was not that Supreme Court vacancies should always be left open in presidential election years, but that vacancies should be left open in presidential election years when the president is of a different party than the majority in Senate. McConnell also argued that his position was justified because Obama was a “lame duck.”
For what it’s worth, I never liked McConnell’s argument (and I said so), because it struck me as being needlessly complex. The better argument — indeed, the straightforward and obviously correct argument — is that the Senate is tasked with deciding whether it wants the president’s nominee, and that it can reject or even refuse to consider that nominee for any reason and at any time. The idea that the president should by rights get the nominee he wants — and, by extension, that a nomination can be “stolen” from him if he doesn’t — is the product of our ugly obsession with the White House at the expense of all else. Back in 2016, I heard commentator after commentator insist that the Senate was somehow “ignoring” the election of 2012, which is a position that only makes sense if you believe that presidential elections are the only ones that matter. But they’re not. As McConnell noted, the Senate had been elected, too — and more recently, if that matters — and it chose to use its power to advance its goals. It didn’t want Obama’s nominees, and it didn’t have to accept them. Quite why McConnell couldn’t say just that, I don’t know.
But he didn’t say that, alas. Rather, he said that a delay is imperative in such cases as a vacancy arises during a presidential election year in which the Senate and the White House are run by different parties. Now, he is saying that there is no need for a delay in such cases as a vacancy arises during a presidential election year in which the Senate and the White House are run by the same party. These positions are absolutely compatible, and one does not have to like them to acknowledge that.