Senate Republicans blocked President Barack Obama’s Supreme Court pick, Merrick Garland, in 2016 so voters could have a voice in the process, they said.
Now, months away from another nationwide election that could fundamentally reshape the political power dynamics in Washington, Republicans have a vacant Supreme Court seat that they are eager to fill with a conservative Trump nominee — elections be damned. Senate Majority Leader Mitch McConnell said he expects to confirm a replacement for the Justice Anthony Kennedy, who is retiring in July, by this fall.
Democrats, staring down a midterm election that’s looking more and more like a “blue wave” year, are quick to point out the hypocrisy. But Republicans have already rationalized their change in tune: Comparing a presidential election year to a midterm election year, they say, is like comparing apples and oranges.
“I’m sure [Democrats] are bringing it up, but it is a totally different circumstance,” said Sen. Roy Blunt (R-MO).
A president does the nominating, Republicans say, and the Senate — the body charged with confirming Supreme Court nominees — is just “different.”
“That was a presidential election year, so it was very, very different,” said Sen. James Lankford (R-OK). “We’re not in a presidential election year. Last time, it was the year that a new president’s being elected. That would say every two years you can’t do a nominee, that would be a little odd.”
Sen. Bob Corker (R-TN) also made the distinction between nominating a Supreme Court justice during a presidential an midterm year, saying it made a “huge difference.”
“Why would we do that? I understand with a presidential race, but why would you do it with a Senate race? It’s a huge difference,” Corker said. “The type of person that’s going to be nominated is determined by the president. I can understand a presidential race … but I can’t imagine a midterm election affecting that.”
In all these excuses, what Republicans don’t want to articulate is a simple political reality; Trump is president, and they face a possibly slipping Republican congressional majority. This is their chance to put in a conservative justice and keep a hold on the Supreme Court for a generation.
Republicans are trying to talk themselves out of their 2016 position
In 2016, Senate Majority Leader Mitch McConnell argued that since 2016 was such a highly charged election year, the Senate should wait until after a new president was seated to even consider a Supreme Court nominee.
“It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent,” McConnell said then. “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.”
In other words, only two years ago, McConnell and Republican senators prioritized the role of both the president and the Senate in confirming a Supreme Court nominee — and made it clear that it was about the voters.
Republicans are now making a major reversal.
“The reason you don’t want to do it in a presidential election — is because it is a presidential nomination. It has to do with who is the nominee — not whether they get confirmed or not,” Sen. David Perdue (R-GA) said.
But, of course, the Senate has an important role, as McConnell pointed out in 2016. While taking back the Senate majority will undoubtedly be difficult for Democrats this year — they are defending 26 seats, 10 of which are in states that went for Trump — top GOP strategists have already warned that Republicans’ hold on the Senate could be slipping, NPR reported.
Majority Whip Sen. John Cornyn (R-TX) disagreed: “I don’t really think the Senate is in play and I expect whoever to get nominated to get bipartisan support,” he said.
Instead, Republicans say they are going by historical precedence.
“Four times since 1980, in an off election, we have nominated a Supreme Court Justice,” Perdue noted.
Of course, Republicans’ refusal to confirm Garland broke historical precedence. Six Supreme Court justices have been confirmed in presidential election years since 1912.
Not to mention McConnel’s historic rule change to confirm Supreme Court Justice Neil Gorsuch last year, which changed Senate procedure to only require a simple majority of 51 votes instead of the typical 60-vote threshold.
Democrats aren’t buying it
Senate Democrats are trying, fruitlessly, to hold McConnell to his own standards.
With the news that Justice Kennedy will retire later this summer, Democratic leaders in the Senate — Senate Minority Leader Chuck Schumer and Senate Minority Whip Dick Durbin — are already calling for Trump’s replacement pick to be considered in January, after the 2018 elections happen and a new Congress is seated.
This has all the echoes of the argument Senate Majority Leader Mitch McConnell made in 2016, when Senate Republicans blocked the nomination of Obama’s Supreme Court nominee, Merrick Garland, on the basis that it was a presidential election year, and nominees should be made by the new president.
“Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court nominee in an election year,” Schumer said Wednesday in a speech on the Senate floor. “Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy.”
Durbin echoed that in a tweet and statement calling on McConnell and Senate Republicans to be “consistent” with the standard they set in 2016.
Of course, McConnell is showing no indication he plans to wait until January, saying the Senate will vote on a Kennedy replacement this fall.
Other Democratic senators said they want to wait and see Trump’s new nominee before they make a decision of whether or not to oppose a vote before the midterms outright. But with both Durbin and Schumer coming out and making such strong statement immediately, there’s likely to be pressure for Democrats to fall in line — and there’s plenty of residual anger over the Garland debacle.
Ultimately, it won’t matter if all Democrats oppose Trump’s pick as long as Republicans stick together and vote in favor, but there are a number of potential swing votes in the mix. Democrats’ likely only hopes are pro-choice moderate Republican Sens. Lisa Murkowski and Susan Collins, who could vote against an ultra-conservative nominee over fears that the fundamental precedent legalizing abortion, Roe v. Wade, could be overturned.
There will be pressure for red-state Senate Democrats staring down tough primaries to vote with Republicans. Sens. Joe Manchin (D-WV), Heidi Heitkamp (D-ND) and Joe Donnelly (D-IN), all voted to confirm Justice Neil Gorsuch and all are facing tough challenges in the fall.
“If [the vote] was before the November election, I would expect a few Democrats to vote for the nominee,” Blunt noted.