In 2016, he left a vacant Supreme Court seat open until after a Republican won the White House so that his party could fill it. In 2020, Senate Majority Leader Mitch McConnell (R-Ky.) is willing to do the opposite.
"Oh, we’d fill it,” McConnell told supporters in Kentucky on Tuesday when asked what he would do if a Supreme Court justice died in 2020 while President Trump was still in office, as CNN reported.
The politics behind McConnell’s 180 is pretty obvious. It benefited his party to keep the seat open in 2016, and it benefits his party to fill it in 2020, so that’s what he’s going to do. But McConnell’s attempt to explain his blatantly political change of heart about Supreme Court vacancies is more tortured.
McConnell can’t just come out and say that he’s changing his mind because it benefits his party. So to defend against charges of hypocrisy, he’s arguing that in 2016, it would have been supremely rare for a Republican Senate to confirm a Democratic president’s nominee in an election year, so why should McConnell have done it for Barack Obama? In 2020, there’s a Republican Senate and a Republican White House, so McConnell’s in the clear.
McConnell argued to reporters in October that this whole opposite-party thing is a tradition he was trying to abide by three years ago: “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."
Except, that’s contextually misleading. As I wrote in October, there haven’t been many cross-party Supreme Court nominations in an election year because there haven’t been that many cross-party Supreme Court vacancies in an election year:
McConnell isn’t wrong that the Senate of one party rarely confirms an opposing president’s Supreme Court nominee in an election year. As he said, that’s partly a function of politics: Why would you, if you’re the Senate leader, give the other side a win just before an election? But it’s also a function of how rarely the stars align to have all three situations: (1) a Senate of one party, (2) a White House of another and (3) a Supreme Court vacancy in an election year. A Fix analysis found that there have been just 13 election-year Supreme Court vacancies since 1800. Six of those were filled the same year.
Plus, in 2016 McConnell wasn’t parading around this argument as much as he was another: that the voters should decide, by function of the presidential election, who gets to fill the Supreme Court vacancy. He mentioned the “separate party” thing a couple times, as his office pointed out to The Fix in October. But the average person listening to McConnell’s argument for not giving Merrick Garland a hearing heard him focus on the outgoing president’s status rather than his party. It was decidedly more principled than what McConnell is arguing today.
“Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court,” McConnell and Senate Judiciary Chairman Charles E. Grassley (R-Iowa) wrote in a Washington Post op-ed at the time.
McConnell is allowed to do all this. There’s no law that the Senate has to fill Supreme Court vacancies as soon as they open, or ever. He’s the leader of the Senate, so he gets to decide what senators vote on. And it’s impractical to expect McConnell to hold off on confirming a Supreme Court pick from his own party, one that could very likely thrust the court in a much more conservative direction.
"Frankly, it would be shocking for a majority leader of either party in McConnell’s position to rule out confirming a justice in a situation like that,” Josh Chafetz, a Cornell University law professor and expert on the nexus of Congress and the Supreme Court, told The Fix in October.
McConnell is changing his mind on Supreme Court vacancies in an election year to benefit him and his party. He smartly left himself wiggle room in 2016 for this moment in 2020 by arguing once or twice that opposing parties generally do not cooperate with each other on Supreme Court nominations in an election year. But in using that wiggle room, it sounds like he’s flip-flopping because it’s politically convenient for him.