Senate Majority Leader Mitch McConnell (R-Ky.) — who blocked President Barack Obama’s 2016 nominee to the Supreme Court for nearly a year amid widespread Democratic objections — signaled Monday that he would help fill a high-court vacancy if one emerges when President Trump is up for reelection in 2020.
Speaking at a news conference in Louisville, McConnell said his decision to block Obama’s nominee, Judge Merrick Garland, 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 — leaving open the possibility he would help advance a Trump nominee in 2020 if Republicans still hold a majority in the Senate.
“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 Monday.
“Look, it’s practical,” he said later. “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.”
That justification marks a notable shift from the argument McConnell invoked repeatedly in 2016, when he said voters “should have a say in the court’s direction” by casting ballots in the upcoming election.
The handling of Garland’s nomination has been a source of ire for Democrats for two years — anger amplified by the GOP’s confirmation of two Supreme Court justices under Trump. Brett M. Kavanaugh, who faced allegations of sexual assault from multiple women, was confirmed Saturday by a vote of 50 to 48. Kavanaugh vehemently denied the allegations.
Democrats had called on McConnell not to advance Kavanaugh’s nomination, which Trump announced on July 9, because it came during an election year.
“Our Republican colleagues in the Senate should follow the rule they set in 2016,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said in June on the Senate floor.
McConnell countered that the rule did not apply to midterm election years.
“This is not 2016. These aren’t the final months of a second-term, constitutionally lame-duck presidency with a presidential election fast approaching. We are right in the middle of this president’s first term,” McConnell said in a floor speech in June.
Trump has reportedly predicted that he will confirm four Supreme Court justices during his first term. Justice Ruth Bader Ginsburg, who joined the court in 1993, is 85, and Stephen G. Breyer, who joined the court in 1994, is 80; both are associated with the court’s liberal wing.
In 2016, McConnell threw down the gauntlet shortly after Supreme Court Justice Antonin Scalia’s death in February.
The next month — more than 200 days before the presidential election — Obama nominated Garland, and McConnell responded with a speech explaining his decision to forestall confirmation hearings.
“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” McConnell said on the Senate floor.
He did not cite “tradition going back to the 1880s” but noted that Joe Biden, when he was the chairman of the Senate Judiciary Committee in 1992, said action on a Supreme Court nominee should be postponed until after an election “once the political season is underway.”
Another prominent Kavanaugh backer, Sen. Lindsey O. Graham (R-S.C.), struck a different note than McConnell during comments last week. “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election,” Graham said during an appearance at the Atlantic Festival in Washington.
McConnell spoke to reporters in Louisville on Monday before traveling to Washington to attend a White House ceremony honoring the newly sworn-in Kavanagh.
“We were standing up for the presumption of innocence in this country,” McConnell said of his support for Kavanaugh, blaming protesters on Capitol Hill for a “full-scale effort to intimidate” senators.
Asked about the country’s divisions in the wake of new justice’s confirmation, McConnell was upbeat.
“We go through these periods. We’ve had big fights over other things. The country will be just fine,” he said.