Mitch McConnell flip-flops on considering Supreme Court justices in a presidential election year

When Supreme Court Justice Antonin Scalia died in February 2016, Senate Majority Leader Mitch McConnell, R-Ky., said a vote on the next Supreme Court justice shouldn’t be held during an election year. 

McConnell blocked a vote on Merrick Garland, President Barack Obama’s Supreme Court nominee, for most of 2016, and the newly elected president, Donald Trump, filled it instead.

The Sept. 18 death of Justice Ruth Bader Ginsburg now leaves the court with another vacancy, this time less than seven weeks before the Nov. 3 election. But now, McConnell said Trump’s nomination will receive a vote.

Democrats called it the height of hypocrisy and double standards. Senate Minority Leader Chuck Schumer, D-N.Y., even quoted McConnell’s 2016 rationale verbatim in a tweet that said "Americans should have a voice."

We researched McConnell’s past statements. From the beginning, he said the Senate should wait for elections to decide the next president who would choose Scalia’s replacement. On numerous occasions, he offered an artfully crafted justification that cited historical precedent to uphold that position, but that doesn’t change the fact that he is not waiting on the voters to speak in 2020  as he had argued in 2016.

Ultimately, experts told us that McConnell would have been more honest to simply explain that he’s pursuing a Supreme Court confirmation this late in the election cycle because he has the power to do so.

McConnell’s short remembrance of Scalia upon the news of his death ended with the revelation that he would reject any nominee from Obama during his final year. At the time, the election was almost 10 months away.

"The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president," McConnell said in a Feb. 13, 2016, statement.

On that first night, there were no further caveats.

Subsequently, in some settings, McConnell stuck to this line without elaboration (once adding #LetThePeopleDecide). Many Republican senators picked up the argument that it was too close to the presidential election to pursue confirmation.

But McConnell would come to repeat a caveat that left open a path of consistency if the shoe were ever on the other foot. McConnell said on several occasions that the Senate had not confirmed a nominee from a president of the opposite party since 1888.

For instance, in March 2016, McConnell said on Fox News Sunday, "You have to go back 80 years to find the last time a vacancy on the Supreme Court created in a presidential election year was filled. You have to go back to 1888 when Grover Cleveland was in the White House to find the last time when a vacancy was created in a presidential year, a Senate controlled (by the) party opposite the president confirmed."

With the Senate majority and White House both in Republican hands today, McConnell revived the caveated version of the justification he used in 2016.

"In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term," McConnell said in his Sept. 18 statement. "We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year."

McConnell made this point again a few days later in his first Senate floor speech after Ginsburg’s death. 

However, claims like this obfuscate the fact that Supreme Court vacancies in presidential election years are rare — and there was no consistent pattern of punting on a nomination.

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Einer Elhauge

stated on January 5, 2012 in a commentary in the New England Journal of Medicine

"In 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm."

One problem with parsing precedents for handling past Supreme Court vacancies in an election year is that there are only a few historical examples to look at, and each has quirks that make them different. For instance, Scalia’s death and Ginsburg’s both created vacancies, but Scalia’s came 268 days before Election Day while Ginsburg’s came just 46 days before the election, at which point voting in some places had already begun.

"What we have is a framing war that reflects the values of each side, one that ultimately spins, picks and chooses the facts, perspectives, and structures of the discussion," said Colorado State University political scientist Kyle Saunders. 

Previous "rules" addressing the handling of election-year Supreme Court nominations, including one attributed to the late Sen. Strom Thurmond, R-S.C., in 1968 and one offered by then-Sen. Joe Biden in 1992, have been cited frequently, but they carry no official force, said Steven S. Smith, a political scientist at Washington University in St. Louis. 

If McConnell’s overarching argument in 2016 was that the public should be able to weigh in on the nomination, then he’s offered a different standard for 2020, Smith added. In February 2016, McConnell said the expression of popular sentiment would occur in the coming November election. But in September 2020, McConnell indicated that the public expression has already been made by electing a president and Senate majority in the past, in 2016 and 2018.

"To say, ‘We blocked the opposing party’s nominee in 2016 because we controlled the Senate, and we will vote on our own party’s nominee in 2020 because we control the Senate’ is merely to say, ‘We control the Senate and will do what we wish, regardless of the occupant of the White House,’" said David Greenberg, a Rutgers University historian. "No actual rule is being articulated."

In addition, a majority of voters rejected Trump in 2016, and in both 2016 and 2018, Democrats won more votes for Senate seats than Republicans did, said John J. Pitney Jr., a Claremont McKenna College political scientist.

"Principle, schminciple — it's all about power," Pitney said.

McConnell’s position in 2016 was not to hear a Supreme Court justice nominee in an election year. "The American people should have a voice in the selection of their next Supreme Court Justice," he said on the night of Scalia’s death.

In 2020, his position has changed. He will no longer wait for the American people to decide in the next election. 

In both cases, McConnell offered a justification that confirmations have proceeded when the presidency and the Senate are in unified control and have stalled when the two are under divided control. However, this isn’t a higher principle that led McConnell to his decision; it’s a cherry-picked, after-the-fact justification for the raw exercise of power he undoubtedly has.

McConnell’s overarching stance on whether the people should weigh in on a nomination during the next election was different in 2016 and 2020. It’s a Full Flop.