McConnell Says GOP-Controlled Senate Would Block Biden Supreme Court Nominee in 2024

What’s the story?

• In an interview with Hugh Hewitt on Monday, Senate Minority Leader Mitch McConnell (R-KY) said that if Republicans retake the majority and a Supreme Court vacancy arises in 2024, they would likely block a nominee put forward by a Democratic president as they did in 2016.
• When asked by Hewitt whether the rule McConnell applied in 2016 to the vacancy created by the death of Justice Antonin Scalia ― when the GOP Senate majority declined to consider Democratic President Barack Obama’s nominee ― would apply to a 2024 vacancy, McConnell responded:

“Well, I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled. So I think it’s highly unlikely. In fact, no, I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president.”

• Hewitt also asked McConnell whether that rule would also apply to a Supreme Court nominee picked by a Democratic president in 2023, to which McConnell replied, “Well, we’d have to wait and see what happens.” Democratic lawmakers have been lobbying Justice Stephen Breyer, 82, to retire and allow President Joe Biden to nominate a replacement while his party controls the Senate.

What is the “McConnell rule”?

• The “McConnell rule” refers to the position that the Senate majority need not consider a Supreme Court nominee put forward by a president of the opposite party during a presidential election year.
• The abrupt death of Justice Antonin Scalia on February 13, 2016, created a vacancy that left the Court with four justices appointed by Republicans and four justices appointed by Democrats. McConnell released a statement saying, “The American people should have a voice in the selection of their next Supreme Court Justice.” Later that month, he spoke on the floor and said the Senate has the right to decline to consider a nomination given GOP control of the Senate and Democratic control of the White House:

“Of course it’s within the president’s authority to nominate a successor even in this very rare circumstance ― remember that the Senate has not filled a vacancy arising in an election year when there was divided government since 1888, almost 130 years ago ― but we also know that Article II, Section II of the Constitution grants the Senate the right to withhold its consent, as it deems necessary.”

• After then-President Barack Obama nominated Judge Merrick Garland to fill the Supreme Court vacancy, McConnell reiterated that the Senate would not consider Obama’s nominee and would leave the position vacant until the winner of the 2016 presidential election took office. After President Donald Trump’s victory and inauguration, the Senate confirmed Justice Neil Gorsuch to fill the Scalia vacancy in early 2017.
• The issue re-emerged in the political debate after the death of Supreme Court Justice Ruth Bader Ginsburg only 46 days before the 2020 presidential election. Senate Democratic Leader Chuck Schumer (D-NY) called for the vacancy to be held open until after the election like in 2016, but McConnell noted in a statement that the circumstances were different in 2020 because Republicans controlled both the presidency and the Senate:

“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. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

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. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.” 

• The Republican Senate ultimately confirmed Justice Amy Coney Barrett to fill the Ginsburg vacancy on the eight days before the 2020 election in what was the second-fastest confirmation process for a Supreme Court justice in the modern era.
• Throughout the debates over the “McConnell rule” in recent years, the GOP leader has referenced comments made by current President Joe Biden during his time as a senator that affirmed the right of the Senate to decline to consider a nominee put forward by the president of the opposite party during an election year. 
• The “Biden rule” originated in 1992, when Democrats controlled the Senate majority and Biden, who was the chairman of the Senate Judiciary Committee at the time, spoke on the Senate floor to warn then-President George H.W. Bush (a Republican) against putting forward a nominee during an election year:

“Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention Convention and weeks before the Repulican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.

Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not ― and not ― name a nominee until after the November election is completed…

Some will criticize such a decision and say it was nothing more than an attempt to save a seat on the court in the hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose in the Senate ― to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”

— Eric Revell

(Photo Credit: Gage Skidmore via Flickr / Creative Commons)