Contemplating the possibility that Democrats could win the presidency in 2020 while Republicans retain the Senate, MSNBC’s Chris Hayes mused, “If there’s a Dem president and R Senate majority, what are the odds McConnell holds hearings for a Dem Supreme Court nominee?” The answer is that it depends, but also, that actually confirming a nominee is another story.
At the time McConnell blocked Merrick Garland from the Supreme Court, his official position was that given it was a presidential election year with a lame-duck president in place, it was best to wait until after the election so that voters could decide the issue. The reality was that there was no way he was going to let Barack Obama replace Antonin Scalia with a liberal justice and tilt the balance of the court given that Republicans had the power to stop him. If Garland were being appointed to replace liberal Justice Ruth Bader Ginsburg, he would be on the Supreme Court today.
Likewise, if in 2021 there is a Democratic president and Ginsburg retires, McConnell is likely to hold hearings on a replacement. If the vacancy is either Chief Justice John Roberts or anybody to his right, it becomes significantly less likely.
But the ultimate question isn’t only whether McConnell would hold hearings, but whether a Democratic nominee could get confirmed by a Republican Senate. And that’s a much bigger “if.”
Even if McConnell decides that he can’t get away with rationalizing blocking an otherwise qualified nominee on a non-presidential election year, it isn’t clear that he could supply the votes to get that nominee confirmed, because what he decides might make sense for the party as a whole or the institution of the Senate might be a lot different than the considerations of individual senators. And in the current environment, not many Republicans would be able to vote for a liberal justice. We are long past the days of deference to the idea that a president generally should be able to appoint who he or she wants.
In fact, in the foreseeable future, it’s unclear that we’ll have any Supreme Court confirmations unless one party controls both the White House and Senate, especially if that nomination is going to alter the ideological makeup of the court.
Looking back at every Supreme Court nomination since 1975 (which marks all of the nominations in the post-Roe v. Wade era), we can see that it used to be fairly routine for the opposing party to vote in large numbers to confirm a nominee of the other party.
Justice Clarence Thomas was the last nominee who was confirmed with another party in control of the Senate, and even then, by a much narrower margin than Antonin Scalia had been a few years earlier.
Still, Thomas won over 11 Democrats, which is a higher number of opposing party votes by any nominee following Chief Justice John Roberts. Starting with Justice Samuel Alito, party defections have stayed in the single digits. Garland was of course blocked, and Justices Neil Gorsuch and Brett Kavanaugh only won three and one Democrats, respectively.
So, it’s difficult to imagine a Democratic Senate confirming any picks from a re-elected Trump, or a Republican Senate confirming picks from a Democratic president, with the obvious stipulation that it depends on the ideological shift.
