Democrats argue that GOP rhetoric over Judge Merrick Garland's failed nomination in 2016 means that Republicans cannot try to push through a Supreme Court nominee in 2020. Mitch McConnell begs to differ.
Fresh off the GOP’s confirmation of Brett Kavanaugh, McConnell is setting the stage for another potential Supreme Court victory — this one in a presidential election year.
McConnell has been lecturing the media on the precedents for confirming Supreme Court nominees and pointedly won’t rule out taking up another nomination during President Trump's four-year term, even if it occurs in the 2020 election year.
“We’ll see if there's a vacancy in 2020,” McConnell, R-Ky., said on Fox News Sunday. McConnell was quickly accused of abandoning a “standard” used by Republicans in 2016 to deny President Barack Obama’s nomination of Merrick Garland to fill the vacancy left by the February 2016 death of Associate Justice Antonin Scalia.
[Read: McConnell ready for another Supreme Court vacancy]
"The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president," McConnell said in a statement just hours after Scalia’s sudden death.
On Monday, McConnell told reporters at a Kentucky press conference that he’s not changing the standard used to deny Merrick Garland’s nomination but rather is sticking to “exactly what the tradition is.”
It’s about party control, McConnell said. “The Senate in the hands of one party and the White House in the hands of another in a presidential election year,” McConnell said, explaining why he did not allow a vote on Garland. “That is what we had in 2016.”
Those rules don’t apply if the White House and Senate are governed by the same party, McConnell said.
Any move to advance a high court nominee in 2020 — which would happen if one of the nine justices died or retired — would prompt major resistance from Democrats, who bitterly view the Garland nomination as a stolen seat on a Supreme Court that is now tilted to the Right.
McConnell's alleged shift on Garland — Republicans prefer to see it as an elaboration — has left some apoplectic. MSNBC host Joe Scarborough, a former Republican congressman who has since renounced the party, lambasted the GOP leader on his show.
“It’s like a used car salesman,” he ranted on “Morning Joe.” “This car only has three tires on it. No, no, it’s got four tires on it. You’re not listening to me. It’s got four tires ... Now they’re moving the goal post to different parties. Pretty soon, I suppose if it serves him, there will be a leprechaun rule ... he's changing history, he's adjusting facts."
Democrats frequently raised Garland’s tanked nomination during the highly partisan battle to confirm Kavanaugh, who narrowly won approval by the Senate after a last-minute string of sexual misconduct allegations.
Senate Minority Leader Chuck Schumer, D-N.Y., on Friday called Kavanaugh’s divisive nomination process “a sorry epilogue to the brazen theft of Justice Scalia’s seat.”
But McConnell insists history is on his side. On Monday, he attempted to give reporters that history lesson, telling them an opposite-party Supreme Court nominee has not advanced in the Senate in a presidential election year since the 1880s.
Democrats, he added, have twice in recent times threatened not to take up a Republican president’s election year Supreme Court nominee.
The most infamous example was then-Sen. Joe Biden, D-Del., who in 1992 pledged not to take up an election year nominee sent to the Senate by President George H.W. Bush.
Republicans often invoke the former vice president’s statement as “the Biden rule.”
Biden, who was chairman of the Judiciary Committee at the time and played a key role in moving judicial nominees, said Republican high court picks were too divisive to be considered during a presidential election year.
Biden pointed to the bitter fight over the Clarence Thomas nomination. “Given the unusual rancor that prevailed in the Thomas nomination, the need for some serious re-evaluation of the nomination and confirmation process and the overall level of bitterness that sadly infects our political system and this presidential campaign already, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote at best,” Biden said in floor speech delivered about four months before the November 1992 presidential election.
Democrats made a similar pledge in 2007, 18 months before the 2008 election. “We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances,” Schumer said in 2007. “They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”
The media has continued to challenge Republicans on the precedent and whether McConnell is accurate.
"Face the Nation" host John Dickerson told McConnell Sunday his view of the precedent was “not right.” Biden, Dickerson argued, was speaking hypothetically and was never tested by an actual court vacancy.
Dickerson said the 1956 nomination of William Brennan by Republican President Dwight D. Eisenhower is an example of Democrats advancing a GOP high court nominee in a presidential election year, countering McConnell’s claim.
“And so what Democrats say when they hear you doing this is, they say he's creating new rules to essentially do what he wants to do,” Dickerson told McConnell.
But Dickerson wasn’t accurate. Democrats who controlled the Senate did not confirm Brennan in 1956 as Dickerson argued. Instead, Eisenhower put him on the court on Oct. 15, 1956, by making a recess appointment because the Senate had already adjourned for the year. Brennan was confirmed to a lifetime term the following March, after Eisenhower won re-election.
The fight over a 2020 nominee may ultimately remain hypothetical. None of the Supreme Court Justices are even hinting at retirement. The oldest, Associate Justice Ruth Bader Ginsburg, plans to stick around for five more years, she told NPR’s Nina Totenberg in January.
"I'm now 85," Ginsburg said. "My senior colleague, Justice John Paul Stevens, he stepped down when he was 90, so think I have about at least five more years."