Senate Majority Leader Mitch McConnell has called for swift confirmation of a successor to retiring Supreme Court Justice Anthony Kennedy, sparking cries of hypocrisy from Democrats.
Liberals are demanding the Kentucky Republican apply the same standard to the first high court vacancy to occur under President Trump that he enforced in the last year of former President Barack Obama’s tenure. When Associate Justice Antonin Scalia died in February 2016, McConnell quickly declared that the Senate would not consider, let alone confirm, any Obama nominee — that the pick should belong to the next president.
Democrats claim the standard McConnell set was that election-year vacancies should not be filled before Election Day. But as McConnell discussed in an expansive interview with “Behind Closed Doors,” a Washington Examiner podcast, he was referring to presidential, not midterm, elections when he decided, without consulting other Republicans, to block Obama from appointing a third Supreme Court justice.
[Related: Senate GOP eager to advance successor]
McConnell had a few things on his mind the Saturday that Scalia passed away.
He has always prioritized the federal bench, and Obama’s nominee tilting a narrowly divided Supreme Court to the Left was unappealing. There also were raw political concerns. Republican presidential hopefuls were debating that evening, and McConnell suspected at least one, possibly Sen. Ted Cruz, R-Texas, would insist the vacancy be held for the next commander-in-chief, putting GOP senators in tough re-election contests in a bind.
So, uncharacteristically, the majority leader moved unilaterally, without asking his conference for input. Indeed, as McConnell discussed, he wasn’t even aware of the so-called “Biden rule,” (coined from former Vice President Joe Biden’s time in the Senate but since rejected by him) until after he decided to gamble that the next president would be a Republican, and that, regardless, the GOP’s endangered Senate majority would survive to influence his or her choice of nominee.
It paid off. Obama’s nominee, Merrick Garland, never received a hearing, and in 2017, Trump filled the Scalia vacancy that McConnell preserved with Neil Gorsuch who has been a reliable conservative vote on the Supreme Court. Below is a full transcript of McConnell’s remarks on the matter during the Behind Closed Doors interview on June 14, edited only for clarity:
“We were going into a one-week recess, so consultation was not possible – I had members all over the country and all over the world. I felt that I needed to lay down a marker and I knew to implement that I’d have to sell it to my members when we finally got back together a week later. And, I spent a lot of time thinking about it — couple hours thinking about it — not any longer than that, because I knew for sure that if the shoe were on the other foot, they wouldn’t fill a nominee by a Republican president in the middle of a presidential election year. By the time we all got back a week later, I had discovered that that’s exactly what Joe Biden had said in 1992 when he was chairman of the [Senate] Judiciary Committee, that if a vacancy occurred they wouldn’t fill it. I also discovered that 18 months before the end of [President George W.] Bush 43, both [Sen. Charles] Schumer [D-N.Y.] and [then Senate Majority Leader Harry] Reid [D-Nev.] had said that if a vacancy occurred they wouldn’t fill it.
“And, so by the time we all sort of were able to get together a week later I had some pretty good arguments to make, and I added a couple more to it. I said I … think the president’s going to send up a well-qualified liberal, you know he’s gong to do that. I don’t think we ought to have hearings, or act on it because if the point is, who ought to make the nomination, then the issue of the nominee is irrelevant. And of course subsequently the president did send up a well-qualified person who would have moved the court to the left. But it wasn’t about Merrick Garland it was about who ought to make the appointment.
“What none of us knew at that point, David, was who the nominee was going to be. By June, it was clear that Donald Trump was going to be the nominee, and a lot of us were saying: ‘I wonder what he’s going to be like, he was doing fundraisers for Schumer four or five years ago, he was a registered Democrat in 2012, or 2010, I forget which year it was. But the campaign linked him up with the Federalist Society, and he put out, remember, the list, that was very reassuring to Republican voters. And what we found out in the fall when the president kept mentioned that in his campaign, it was the single biggest factor in leading to Donald Trump getting the same percentage of the Republican vote that Mitt Romney did in 2012.
“I didn’t anticipate that, but the president’s decision to declare what kind of people he would put on the Supreme Court was reassuring to a whole lot of Republicans who were skeptical about him, and it played a major role in the outcome of the election.”
