With his party now in the White House, McConnell said Tuesday he would try to push through any nomination that President Trump might make to the high court — even if it comes during an election year. Some saw that stance, which McConnell has signaled before, as hypocritical.
McConnell responded to the hypothetical question at a Chamber of Commerce luncheon in Paducah, Ky.
“Should a Supreme Court justice die next year, what will your position be on filling that spot?” an attendee asked, setting up a scenario that would mirror 2016, when Justice Antonin Scalia died suddenly in February.
“Oh, we’d fill it,” McConnell said with a wry, tight-lipped smile.
It was his most direct comment yet about what would happen if a surprise retirement or death presented McConnell with a 2016 redux, something liberals began to worry over in earnest when Justice Ruth Bader Ginsburg missed work after being diagnosed with lung cancer. (She had surgery and returned to the court in February.)
"Everything else changes,” he said, before adding: “What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law. That’s the most important thing we’ve done in the country, which cannot be undone.”
After his comments circulated Tuesday evening, Senate Minority Leader Charles E. Schumer (D-N.Y.) took to Twitter to slam McConnell.
Other Democratic politicians seized on McConnell’s comments. Rep. Hakeem Jeffiries (D-N.Y.), the chairman of the House Democratic Caucus, questioned the independence of the Supreme Court on Twitter. “Republicans stole a Supreme Court seat from President Obama in 2016. Mitch McConnell just admitted it,” Jeffries wrote. “John Roberts is the Chief Justice. But it’s really the McConnell Court. And it has ZERO CREDIBILITY.”
But rather than focusing on McConnell’s actions in 2016, other Democrats wanted to look ahead. Brian Fallon, the former national press secretary for Hillary Clinton’s 2016 campaign, called on party members to explain “what they are going to do” about McConnell’s stance.
Some White House hopefuls made their plans known, including Washington governor and 2020 Democratic candidate Jay Inslee, who called for ending the Senate filibuster, and former Housing and Urban Development secretary Julián Castro (D), who pledged to make recess appointments if, as president, he encountered partisan obstacles to appointing a Supreme Court justice.
Other critics said it was another example of backhanded partisan gamesmanship.
“History will record McConnell as the true villain of some of the ugliest moments in this period of US history,” Susan Hennessey, the executive editor of the Lawfare blog, said in a tweet.
Some also criticized the humor McConnell used to punctuate his response.
“Senator McConnell’s statements further damage and undermine the Supreme Court at a time when its standing has been significantly diminished in the eyes of the public,” Kristen Clarke, the executive director of the Lawyers’ Committee for Civil Rights Under Law, said in a statement. “This is no laughing matter.”
Matthew Yglesias, co-founder of Vox.com, argued that McConnell’s tactics were opportunistic but hardly unique.
“At times, political leaders stake out positions on process issues that seem hypocritical or opportunistic,” he wrote on Twitter. “Mitch McConnell stands out from the pack somewhat in how open and unembarrassed he is about this, though the basic pattern is far from unique.”
But David Popp, McConnell’s spokesman, said the majority leader’s remarks were nothing new.
“What the leader did today is emphasize what he has said since October,” Popp told The Washington Post, referring to comments McConnell made last year in which he left open the possibility that he would help advance a Trump nominee in 2020.
In October, McConnell said at a news conference that his decision to block Garland’s appointment was based on a tradition that opposition parties in control of the Senate do not confirm Supreme Court nominees during presidential election years. He claimed the precedent only applies when different parties control the Senate and the White House — which was the case in 2016, but would not be in 2020.
“The tradition going back to the 1880s has been if a vacancy occurs in a presidential election year, and there is a different party in control of the Senate than the presidency, it is not filled,” McConnell told reporters then.
“Look, it’s practical,” he added. “Think about it. There’s no chance that an opposition party in control of the Senate is going to fill a Supreme Court vacancy occurring in the middle of a presidential election year, and that’s why it hasn’t happened since the 1880s.”
The Senate majority leader’s office sent out an email Tuesday morning asserting that McConnell had held this stance on Supreme Court nominees consistently since 2016, and provided several example.
The earliest citation is a February 2016 statement he made shortly after Justice Antonin Scalia’s death, which had created the opening on the court that Obama attempted to fill by nominating Garland.
“Of course it’s within the president’s authority to nominate a successor even in this very rare circumstance — remember that the Senate has not filled a vacancy arising in an election year when there was divided government since 1888, almost 130 years ago — but we also know that Article II, Section II of the Constitution grants the Senate the right to withhold its consent, as it deems necessary,” McConnell remarked on the Senate floor.
But McConnell’s comments this week have a new resonance since former vice president Joe Biden’s entry into the race for the Democratic nomination. During a recent campaign stop, Biden touted his bipartisan credentials and claimed the public would witness “an epiphany occur among many of my Republican friends.” GOP lawmakers, Biden predicted, would be willing to work with him once Trump left office.
McConnell and Biden do indeed have a history of working with one another, such as in 2013, when together they pulled the country back from the fiscal cliff. But much has changed since then, and many saw Biden’s comments as naive, especially since he made no mention of McConnell’s role in keeping Garland off the court.
Ironically, in doing so, McConnell cited the so-called Biden rule, a reference to a 1992 speech in which Biden argued that President George H.W. Bush should delay the hypothetical confirmation of a Supreme Court justice, should an opening occur before that November’s election.
But later in his Tuesday talk, McConnell hinted that he, too, misses the days when Democrats and Republicans got along better. Although lawmakers maintain interparty friendships, McConnell mused, things have pretty gotten ugly outside the Capitol walls.
“Outside the chamber,” he said, “there’s been a serious decline in civility.”