Senate Majority Leader Mitch McConnell ignited a firestorm yesterday at an event in Paducah, Kentucky. McConnell responded to a question from the audience:
“Should a Supreme Court justice die next year, what will your position be on filling that spot?” the attendee asked.
After a pause, McConnell answered, “Oh, we’d fill it.”
Democrats, harkening back to McConnell’s refusal to bring Merrick Garland’s nomination up for a vote during the last year of President Obama’s term, responded angrily. Chuck Schumer called McConnell a “hypocrite.” Tina Smith sent out a fundraising email–Democrats never lose any time when it comes to fundraising–that began:
In a complete act of hypocrisy and abuse of power, Mitch McConnell just confirmed he’d fill a Supreme Court vacancy in 2020 — despite his refusal to hold a vote for Merrick Garland in 2016.
McConnell has single-handedly politicized the Supreme Court to push his dangerous anti-woman, anti-immigrant, anti-worker agenda through. And the only way to stop another ultra-conservative Supreme Court nominee is to take back the Senate for Democrats.
Is McConnell being inconsistent? I don’t think so. Rather, he is recognizing the fact that in the current political environment, neither a Democratic nor a Republican president will be able to seat a strong liberal or conservative on the Court unless his party controls the Senate.
It was not McConnell, of course, who “single-handedly politicized the Supreme Court.” It was primarily Democrats who did so, beginning with Robert Bork. But even after the Bork fiasco, a series of nominees were confirmed on a bipartisan basis–Scalia, Kennedy, Ginsburg, Breyer and, to a lesser extent, Roberts. The exception was Clarence Thomas, who attracted only 11 Democratic votes, mostly from Southern senators. As a black conservative, Thomas was anathema to the Democrats.
Justice Roberts was confirmed easily, but in a sign of the increased politicization of Court nominations, 22 Democrats voted against confirmation for no apparent reason.
Partisanship became total in 2005, when Democrats were crazed in the wake of President Bush’s re-election. Alito was confirmed 58-42, with only four Democrats voting in favor.
Republicans returned the favor, more or less, in 2009 with the nomination of Sonia Sotomayor. By then, Democrats were firmly in control of the Senate, 60-40, so Republican votes were more or less immaterial. Nine Republicans voted for confirmation, with 31 opposed.
Elena Kagan fared worse in 2010. With the Democrats still in control of the Senate by a wide margin, her confirmation was never in doubt, even though only six Republicans voted in favor.
Republicans were back in control of the Senate in 2017 when President Trump nominated Neil Gorsuch. Polarization continued to increase, with just three Democrats joining all 51 Republicans in support of confirmation.
Democrats amped up their “resistance” to Republican Supreme Court nominees last year with the Brett Kavanaugh nomination. Only one Democrat, Joe Manchin, voted for confirmation. Kavanaugh’s nomination was embittered by the Democrats’ collaborating in the trumping up of transparently false allegations of sexual assault against the nominee.
Given that history, it is obvious that for the foreseeable future, presidents will not be able to get ideologically distinct Supreme Court nominees confirmed unless their party controls the Senate. I don’t think anyone doubts that if the Democrats had controlled the Senate from 2016 to the present, they would have confirmed Obama’s nominee–it wouldn’t have been Merrick Garland, on that scenario–and would have rejected Gorsuch and Kavanaugh. Nor, if we go back in time, would they have confirmed Roberts or Alito.
So McConnell’s position on Supreme Court nominations is not inconsistent. Republicans control the Senate, and they will confirm Republican nominees, while delaying or rejecting Democratic nominees they consider to be too liberal. That is exactly the position Chuck Schumer will take if the Democrats regain control of the Senate in 2020. This is how McConnell put it in an email today:
I’m proud to have stopped President Obama from filling the vacancy on the Supreme Court in 2016. A Senate chamber controlled by the opposite party of a President is not obligated to confirm their Supreme Court pick during a presidential election. Period.
And as the leader of the Republican Majority of the U.S. Senate, it’s my job to stop left-wing policies from becoming laws and activist judges from joining the bench.
But if there’s a vacancy on the Supreme Court in 2020, I will proudly confirm President Trump’s nominee.
Whether this development, in place of the relative bipartisanship that prevailed 30 or 40 years ago, is a good thing depends on how you construe the Senate’s power to advise and consent on court nominations. An active Senate–at least when it is in “enemy” hands–may produce more centrist justices. Again, whether that is good or bad depends on your perspective.