The Corner

Law & the Courts

What Mitch McConnell Actually Said in 2016

Senate Majority Leader Mitch McConnell (File photo: Mike Theiler/Reuters)

You can read his speech, given ten days after Antonin Scalia’s death, here in the Congressional Record. The point he was making is clear: The Senate is not expected to confirm Supreme Court nominees during an election year, especially when the president is of the opposing party. While he certainly used some “let the people decide” rhetoric — and also quoted statements from Joe Biden taking a broader stance against election-year nominations — at no point did McConnell announce a general principle that the Senate should never confirm nominees in these times, even when the majority party wants to.

Just a few paragraphs into the speech, McConnell started making references to the importance of divided government to the situation (all the boldings in this post are mine):

One might say this is an almost unprecedented moment in the history of our country. It has been more than 80 years since a Supreme Court vacancy arose and was filled in a Presidential election year, and that was when the Senate majority and the President were from the same political party. It has been 80 years.

Since we have divided government today, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances.

McConnell repeated this particular point in a number of other appearances, as comments compiled by his staff show.

He then pointed out that Democrats wouldn’t hesitate to use the same tactics, again repeatedly noting the importance of divided government:

We already know the incoming Democratic leader’s view. The senior Senator from New York didn’t even wait until the final year of President George W. Bush’s term to declare that the Senate “should reverse the presumption of confirmation” and “not confirm a Supreme Court nominee except in extraordinary circumstances.”

We also know how the current Democratic leader feels about judicial nominees from a President of the other party. This is what he said:

“The Senate is not a rubberstamp for the executive branch,” he said. “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”

What about the views of the top officer of this body, the President of the Senate? Joe Biden was a Senator for many decades. . . . Let’s consider what he said in circumstances similar to where we find ourselves today. It was an election year with campaigns already underway, a President and a Senate majority from different political parties, just as we have today. This is what appeared on page A25 of the Washington Post:

Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Judiciary Committee, has urged President Bush not to fill any vacancy that might open up on the Supreme Court until after the November election. Warning that any election-year nominee “would become a victim” of a “power struggle” over control of the Supreme Court, Biden said he would also urge the Senate not to hold hearings on a nomination if Bush decided to name someone.

Now, you can debate whether the rules and norms governing Supreme Court confirmations are good. I tend to think that, ultimately, we’ll need serious reforms, such as fixed 18-year terms for justices.

But the constitutional rule is that the president has a right to nominate and the Senate has a right to confirm; the historical norm is something like “the Senate can hold a seat open in a presidential-election year, but it’s not expected to if it doesn’t want to”; and the principles McConnell laid out in 2016 do not require him to hold off on confirming a nominee to replace Ruth Bader Ginsburg.

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