Four years ago, Senate Majority Leader Mitch McConnell blocked consideration of President Barack Obama’s Supreme Court nominee, Merrick Garland. McConnell said he was entitled to do this because it was a presidential election year, and the Senate should wait for voters to choose the president who would choose the next justice. Now that Donald Trump is president, McConnell has reversed himself. On Friday night, after the death of Justice Ruth Bader Ginsburg, McConnell announced that he would proceed with a vote on Trump’s nominee to replace her. It’s a ruthless power grab, and McConnell is trying to cover it with phony excuses.
McConnell’s new statement claims that he was justified in blocking Garland based on a tradition: “Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.” He’s suggesting that the tradition doesn’t apply when the majority party in the Senate faces a nominee put forward by a president of the same party.
But that’s not what McConnell said four years ago. In a Fox News interview on March 20, 2016, he asserted “a long-standing tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.” The “principle,” he explained, was that “the American people are choosing their next president, and their next president should pick this Supreme Court nominee.” The underlying idea was democracy, and that idea applied regardless of the president’s party. In statements throughout the Garland episode, McConnell traced the origins of this tradition not just to the 1880s but to 1932, when the Senate had last confirmed a justice nominated by a president of the same party.
Republicans on the Senate Judiciary Committee took the same position. “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year,” they wrote in a February 2016 letter. “Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in.”
Since 2016, McConnell has reaffirmed this rule. “The tradition had been not to confirm vacancies created in the middle of a presidential year,” he repeated in 2017. “You don’t fill Supreme Court vacancies in the middle of a presidential election.” Now he’s trying to carve out an exception to the rule, by inserting the phrase “opposite-party.”
He’s also trying to rewrite the time frame in which the rule applies. In 2016, he said it applied “in the final year of a presidential term” or “near the end of a presidential term.” Now he says it applies only in “the last days of a lame-duck president’s second term.” This revision, too, is opportunistic and baseless. If the principle is that voters should choose who will make court appointments for the next four years, that principle applies regardless of how long the current president has served.
You could argue that Trump already has a mandate from the previous presidential election. But that was also true of Obama. So McConnell has to explain why he respects the mandate given to a Republican president who lost the popular vote but not the mandate given to a Democratic president who won the popular vote.
McConnell’s answer is that voters, in the intervening midterms, reaffirmed Trump’s mandate but revoked Obama’s. His statement claims that in 2014, voters elected a Republican Senate majority “to check and balance” Obama. “By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.”
The mandate argument reverses the election-year argument. It says that instead of waiting to hear from voters in the current election, you should proceed with what they told you in the last election. But let’s set that flaming contradiction aside. The more basic problem is that McConnell’s description of the GOP’s current mandate isn’t true.
When voters “reelected [the Republican] majority in 2016,” as McConnell puts it, what they actually did was cut that majority from 54 seats to 52. In exit polls, they expressed a more favorable view of the Democratic Party (47 percent favorable) than of the Republican Party (40 percent favorable). In 2018, voters elected Democrats and two Democratic-affiliated independents (Bernie Sanders and Angus King) to 24 of the 35 Senate seats on the ballot. The only reason the GOP kept its majority was that 42 of its 51 seats weren’t up for reelection.
When McConnell blocked Garland in 2016, he said voters had “issued a stinging rebuke to this president and his policies in our latest national election, delivering a landslide for the opposition party as they handed control of the Senate to Republicans.” That’s almost exactly what happened to Trump in 2018. Voters couldn’t flip the Senate—too many Republican senators weren’t on the ballot—so they flipped the House. They delivered a 40-seat landslide, handing control of the House to Democrats. In exit polls, most voters disapproved of Trump, and 46 percent strongly disapproved of him. Two-thirds said the Supreme Court should preserve Roe v. Wade, and a plurality opposed Brett Kavanaugh, Trump’s most recent appointee to the court.
The 2018 election also addressed another point McConnell made in 2016. He said he was entitled to block Garland because “the Senate has not filled a vacancy arising in an election year when there was divided government since 1888.” We now have divided government. Voters elected a Democratic House, and according to polls, they’re likely to elect a Democratic president and a Democratic Senate.
Trump and his party could win the election and claim a mandate. But it’s not true that Republicans kept their Senate majority in 2016 and 2018 because they “pledged to work with President Trump and support his agenda.” Voters rejected Trump’s agenda, including his judicial agenda. They rebuked him in every way they could. And in a poll conducted on Saturday, a majority of voters said Trump shouldn’t appoint a new justice to replace Ginsburg. A plurality, 49 percent to 40 percent, said Joe Biden would do a better job of selecting a justice than Trump would.
McConnell doesn’t want to hear any of this. He doesn’t want to wait for the judgment of the electorate, as he did in 2016. So he’s rewriting history and coming up with excuses. All that stuff about the will of the people has been replaced by caveats like “opposite-party” and “second term,” along with a whitewash of 2018. Don’t believe a word of it. He just wants the seat.
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