Civic Register
| 6.15.21
McConnell Says GOP-Controlled Senate Would Block Biden Supreme Court Nominee in 2024
Should the Senate consider a Supreme Court nominee put forward by a president of the opposite party?
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)
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#MoscowMitch has no conscience so he writes his own rules as he goes along. He’s a reason the GOP has become unhinged. Without a moral compass the only hope the GOP/Trump Party has of winning future elections is to steal them. Being the party of Wealthy Corporations and Individuals and the “poorly educated” as Fascist Herr Trump refers to his minions only gets one so far. The GOP is nearing the end of the line.
Be consistent. If it's okay to cram thru a republican presidents nomination no matter the circumstances, it absolutely must be at least considered if a democrat does it. It really looks bad if you don't. At the very least, consider that. If the person isn't fit for the position, say so. If they are, so that. Saying no consideration will take place is a cowards way out.
It is very clear what the GOP will do. They will block any Democratic nomination to the Supreme Court or any federal court. It is their form of judicial activism. It is totally reactionary. They are acting on behalf of their donors, cleverly drawing attention away from it by exploiting wedge issues. Their ultimate goal is to avoid changing their policies to appeal to more voters.
McConnell is admitting to the world that he hates Democrats and believes that only republicans are fit to rule (he doesn’t know how to govern). He is also officially declaring that he remains a hypocrite and doesn’t believe in fairness.
Yes, it is their constitutional duty, something Moscow Mitch does not care about.
Yes! The courts are supposed to be unbiased...be non political...not be assholes and follow the rules of law. Just to be a juror seems to be stricter than to be a justice! That's not how it supposed to work! It's not 'my way or it's the highway'! The GQP is keeping the trumplican dumpster fire burning and as far as I'm concerned, along with others...they need to be thrown into that fire. Moscow Mitch started the fire burning before the trump got in and it's been raging ever since. The fire needs to be put out before our country can become whole again. This country needs to heal! We are so divided as our democracy languishes on the edge! Do you want to go on like this? Are you okay with this? Do you not care if there's no true justice in this country? Would you want to go before a judge who's prejudice...biased or politically motivated? We need to expel all GQP...starting with Mitch! We need to get back real politics and true justice.
Supreme Court judges should not be a political goal. Judges should be chosen for their record of fairness and competence as a judge.
With Mitch McConnell’s behavior slamming through a supreme court judge two weeks ago in trumps last term and then saying he’s going to put up a fight. Any appointment by JoE Biden and Republican candidate in Florida talking to a colleague which was taped about having his opponent killed by Russian operatives which he went on and on about demonstrates totally did the republican party is no longer in a race for the bottom they are at the bottom. It’s absolutely pathetic republican party has become Nazi party of America. This is not a joke it really has and it’s time it was broken up. I invite any Republican That is sick of this crazy nonsense from the crazy man Donald Trump on down to join the democratic party and it’s broad umbrella of beliefs and goals to move this country forward.
If the nominee is qualified, they should be confirmed. Do what is good for the nation, not party politics.
REPOST: I guess I am having difficulty reconciling how a democratic republic is supposed to work with how our government is currently operating. In any representative democracy, representatives are elected to represent the will of the people. Our Country’s representatives all swear an oath to defend the Constitution and the Country as their highest purpose and defining reason for them to serve in our legislature. The Country in this case is, by definition, the all of us. … … … There is no oath for legislators to just serve themselves, their political party, their benefactors or even just their constituents - none of these things define the nature of their sworn duty to our country, their service in the offices that they hold or the privileges that they afford to themselves in lieu of the public trust. NONE. … … … So, just how is it that the Congressional Republican Senate can just ignore the overwhelming will of the people because honoring the will of the people may give political points to an opposing party? Aren’t they all in office to honor the will of the people? Isn’t honoring the will of the people a paramount responsibly of the people’s elected representatives? … … … All of Biden’s initiatives are supported by a majority of the voters including majorities of Republican, Independent and Democratic voters alike. The HR.1 legislation is supported by over a 60 point spread in WV; supported by 81% of Democratic voters, 79% of Independents and 76% of Republican voters. Politicians benefiting from dark money donations will not support this bill out of their own self interests because of the limitations that HR.1 imposes on dark money donations. Again, these representatives have the paramount duty to honor the collective will of the people and are not elected to protect their cash flow from benefactors. Representing the people’s will - isn’t that how a representative democracy is supposed to work? … … … How can a political party’s leadership, representing the minority of the people, simply declare that they will stop all of the legislative packages sponsored by representatives of the majority as well as being broadly supported the majority of the minority party’s own voters? Just who does the minority party’s representatives actually represent? It is not the will of the people nor the will of their own voters. Is this not putting the will of these legislators over the will of the people of this country and the will of the people that they purport to represent? How can this be tolerated in a democratic republic, a representative democracy, or any form of democracy? Isn’t this action alone a constitutional violation of their oath’s of office and their sworn duty? … … … Just how can the will of the governing supersede the will of the governed in a democracy? Do some of the governing feel that they are somehow some form of Royalty whose purpose is to placate the unfortunate, uniformed serfs that they ‘represent’ and ignore their desires and needs? Just who the f@¢k do they think they are? … … … Why should a minority party which is ignoring the will of the people for their own interests be able to require a 20 plus point spread in Senate voting to pass legislation supported broadly by the people with a 60 point spread? None of our elected official are required to win their elections with a 20 point spread - so why should the overwhelming will of the people even conceivably be allowed to be thwarted by a political party acting in bad faith, solely for the purpose of attaining and retaining political power and their substantial perks of office? I would think that the will of the people should be much more important that the will of a minority of legislators who do not find political advantage in carrying out their duties to the people, or that arcane Senate rules which allow a minority party to overwhelm the majority’s will is somehow more important than their primary duty to represent the all of us. They were not elected to let an abuse of Senate norms excuse them from their primary Constitutional duties. … … … People generally mistrust the Congress, complain about perpetual gridlock and the continued reduced performance of our country in education, life expectancy, homelessness, healthcare, hunger, incarceration rates, social justice, poverty and world status. These are all trends which started when Republican’s sold the public on the failed promises of trickle down economics and Gingrich regimented the House to block-vote and essentially declare war on the Democratic Party for the sole purpose of winning elections by any means possible. All of these things together explain Congressional gridlock and the great damages done to the very foundation that supports this country, our people. It would not have been this way had we insisted that our legislators took a fifth grade civics class and learned how a representative democracy is supposed to work and if we collectively demanded that they honor their duty to our country, their oath’s of office and hold them all to account for spewing of disinformation to convince us otherwise. … … … We have a lot of work to do.
It should always be considered. Garland should have had a fair chance to at least be interviewed/questioned by the Senate Judiciary Committee. I was in support of this with him and Justice Barrett. We are paying Congress to do their job not play games. If after the questioning they are not confirmed then so be it but unfortunately it is all about whom has power at the time.
The job of the Senate is to ‘advise and consent’ on candidates put forth by the President for various positions. There is no mention of party consideration or whether or not it’s an election year.
The people chose them to DO SOMETHING!!! Not just whine & not do their job!
What GQP controlled Senate? Like hell.
I hope that McConnell goes down in history as one of the worst Senate Majority leaders of all, and who is the most dangerous to our Democracy.
I feel that they should be at least given the benefit of doubt.
Yet they put in a Supreme Court justice 6 days before an election. But with 200+ plus wouldn't nominate one for Obama. This Republican party is no longer the party of Reagan, it's the party of racists.
They should always do that as long as the judge is qualified. What McConnell has done in the past and said he would do again is wrong! He should not be able to do that.
Sort of off-topic: No surprise here. Less than 24 hours after Manchin roughed out what he would support in terms of protecting voter rights and reducing the intentional attempts such as gerrymandering to skew election results away from the popular vote, Mitch McConnell already announced his opposition. Put a lot of thought into Manchin’s proposal, didn’t he? Well, at least he’s following through on his promise to 100% block Biden’s and Democrats’ initiatives. There is that. It’s his playbook during Obama’s presidency 2.0. By the way, he’s lying about the “fundamental idea.” The Constitution explicitly states that the fundamental idea is voters rights protections and that Congress has the duty to protect them by overriding States’ decisions about “how to run their elections” if voter rights are diluted. He’s also using fear tactics by waving a threat to the First Amendment without bothering to explain the detail of the threat which suggests to me that it’s nonsense and bullying pretending to be gravitas. Despicable, but consistent. “Senate Minority Leader Mitch McConnell (R-Ky.) announced Thursday that he opposes the compromise on Democrats' sweeping voting rights bill proposed by Sen. Joe Manchin (D-W.Va.). Why it matters: Voting legislation requires 60 votes to pass in the Senate. Without Republican support, it is unlikely to pass. Manchin is the sole Democratic senator who has not signed on to the "For the People Act," insisting that it's too partisan. The big picture: Manchin's proposed compromise includes banning partisan gerrymandering, requiring voter ID, having at least 15 consecutive days of early voting, and making Election Day a public holiday. Stacey Abrams, a leading Democratic voice on voting rights, said Thursday she would support the plan. What he's saying: "Senate Democrats seem to have reached a so-called 'compromise' election takeover among themselves. In reality, the plan endorsed by Stacey Abrams is no compromise," McConnell said. * "It still subverts the First Amendment to supercharge cancel culture and the left's name-and-shame campaign model. It takes redistricting away from state legislatures and hands it over to computers." * "And it still retains S. 1's rotten core: an assault on the fundamental idea that states, not the federal government, should decide how to run their own elections." https://www.axios.com/mcconnell-manchin-voting-rights-ae7a815a-e1c1-48f0-b5bf-6c063e3ded92.html
Moscow Mitch continues to degrade our democracy and the potential for bipartisan efforts by unlawfully refusing to consider Supreme Court nominees from non-Republican Presidents. Mitch needs to be removed from office.