Did anyone have any doubt at all of this? Cocaine Mitch ain’t no fool. Besides, as Mitch McConnell has said several times previously, the precedent under which he blocked Merrick Garland in 2016 had to do with split control as much as it had to do with an election year.
McConnell reiterated that position earlier today with our friend Hugh Hewitt, although he left out the most obvious reason to justify both … because he can. Let’s not kid ourselves:
Senate Majority Leader Mitch McConnell (R-Ky.) pledged Tuesday that Republicans would fill a Supreme Court vacancy in 2019 or 2020, arguing the dynamic is different now than when the party held open a seat in 2016.
Asked during an interview with radio host Hugh Hewitt if Republicans would support filing a vacancy on the Supreme Court in 2019 or 2020, McConnell said “absolutely.”
McConnell has earned fierce pushback for blocking Merrick Garland, President Obama’s final Supreme Court nominee, from getting a hearing or a vote. But he’s said that Republicans would fill a vacancy ahead of the 2020 presidential election. He has argued that there was a divided government in 2016, but there would not be in 2019 or 2020 because Republicans control both the Senate and White House.
The Garland block was the culmination of two decades or more of poisonous partisan warfare over judicial nominations. If the positions were reversed, Chuck Schumer would have done the same thing and for the same reason. That’s the subtext in McConnell’s argument, wrapped up in historical precedent. Here’s the transcript, in which both Hugh and McConnell cover the subject only in brief:
HH: And so it was unusual to say the least. I had a conversation over the weekend with a critic of the decision to hold open the Scalia vacancy, and it was very spirited, because I thought that was the best decision you’ve made, or anyone could have made, not to hold a hearing and not to hold a vote. It wasn’t about Mr. Garland, Judge Garland. However, you’ve said you will fill a SCOTUS vacancy if one occurs in an election year this year, and he said that’s hypocritical. And I said no, it’s not. Senator McConnell said last, when the vacancy occurred, that the Senate is a majoritarian institution that Harry Reid created when it comes to nominations. The majority didn’t want to fill that vacancy in 2016. The majority would want to fill a vacancy in 2020. Is that a fair characterization of your position?
MM: Absolutely. You’re absolutely correct. In fact, you have to go back to 1880 to find the last time, back to 1880s to find the last time a Senate of a different party from the president filled a Supreme Court vacancy created in the middle of a presidential election. That was entirely the precedent. That was confirmed again by Joe Biden in ’92, by Harry Reid and Chuck Schumer in 2007. There were not vacancies existing at the time, but that was the time when the other party controlled the Senate. There was a Republican in the White House. They were quite forthcoming about that. There was nothing I did that was, would not have been done had the shoe been on the other foot had there been a Democratic president, I mean a Republican president and a Democratic Senate. So look, they can whine about this all day long. But under the Constitution, there is co-responsibility for appointments. The President makes the nomination, and the Senate confirms. We are partners in the personnel business up to and including the U.S. Supreme Court.
HH: I remember very well when Abe Fortas was nominated to replace, I don’t remember, but I know very well that when Abe Fortas was nominated to replace Earl Warren, that occurred late in an election year. It was an attempt by LBJ to make sure he controlled the Chief Justice. It did not work, because Abe Fortas was crooked. But there is no doubt in your mind that your caucus would support filling any vacancy whether by retirement or illness or death in the next year and a half?
Everyone knows this, too, simply on the basis of power politics. If for some reason any of the current Supreme Court justices retire or leave the court under other circumstances, McConnell won’t pay one whit of attention to any effort to shame him out of pushing a Trump nominee through to confirmation. Although, it’s worth wondering whether it might be better in an election year to leave the seat open — depending on which seat it is, maybe. After all, the open Scalia seat turned out to be a very galvanizing issue for Trump voters, and pointedly was not for Democrats, as Hillary Clinton lost hundreds of thousands of votes that had been cast for Barack Obama four years earlier.
At any rate, neither Trump nor McConnell would gamble with an opening regardless of whose seat got opened up. The opportunities for setting legacies are just too juicy to let pass.
When it comes to a more pressing issue rather than a hypothetical, McConnell offers less certainty of action. As pressure grows to take some sort of action in response to a flurry of mass shootings, McConnell says he won’t move until Trump makes up his mind:
“We’re in a discussion about what to do on the gun issue in the wake of these horrendous shootings. I said several weeks ago that if the president took a position on a bill, so that we knew we would actually be making a law, and not just having serial votes, I’d be happy to put it on the floor,” McConnell said. “The administration is in the process of studying what they’re prepared to support, if anything, and I expect to get an answer to that next week.”
The shooting spree in West Texas might accelerate that schedule, and perhaps even push Trump further into support for expanded background checks. With Congress returning from its August recess, the White House will get a lot of attention from advocates across the spectrum on gun control, and it’s still unclear just where Trump will land.