When Supreme Court Justice Antonin Scalia died in February 2016, Senate Republicans came out of the gate insisting that his seat not be filled due to the presidential election about nine months away. The Democrats vehemently disagreed. But ultimately, President Barack Obama’s last Supreme Court nominee Merrick Garland — a judge who mainly agreed with now Chief Justice John Roberts, a conservative, when they served together on the appeals court — never received a hearing.
With the death of Justice Ruth Bader Ginsburg on Sept. 18, the debate over Supreme Court nominations during an election year is renewed.
At least one Republican — Sen. Lindsey Graham — had said a Supreme Court vacancy should not be filled until after the 2020 election. Senate Majority Leader Mitch McConnell, however, is saying the opposite of what he did in 2016.
Here’s how the fight over filling high court vacancies has played out among Senate leaders in the last nearly five years, and what they’re saying now:
Feb. 16, 2016: Senate Majority Leader Mitch McConnell, R-Ky., and Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, write an opinion piece in the Washington Post, saying the nation has a “unique opportunity” to make an impact on the court by filling it along with the timeline of voting for a new president, “as they decide who they trust to both lead the country and nominate the next Supreme Court justice.”
“(Democrats would) rather the Senate simply push through yet another lifetime appointment by a president on his way out the door,” they write.
“Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court,” they conclude. “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.”
Feb. 22, 2016: McConnell reaffirms his stance: “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.”
Feb. 23, 2016: “The Senate will appropriately revisit the matter after the American people finish making in November the decision they’ve already started making today.”
March 16, 2016, with Obama’s nomination of Merrick Garland, McConnell stood his ground: It is important for the Senate to “give the people a voice in the filling of this vacancy” by waiting until the next president takes office. “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said. “The next president may also nominate someone very different. Either way, our view is this: Give the people a voice.”
March 20, 2016: McConnell tells Fox News Sunday, “The Senate has a role to play here. The president nominates, we decide to confirm. We think the important principle in the middle of this presidential year is that the American people need to weigh in and decide who’s going to make this decision. Not this lame duck president on the way out the door, but the next president.”
And he tells “Meet the Press”: “The American people are about to weigh in on who is going to be the president. And that’s the person, whoever that may be, who ought to be making this appointment.”
Jan. 31 2017: A day before President Donald Trump nominates Neil Gorsuch for Scalia’s seat, McConnell says, “the Supreme Court seat doesn’t belong to any president or any political party.”
May 28, 2019: McConnell is asked what he would do if a Supreme Court seat came open in 2020. “Oh, we’d fill it,” he said, with a smile.
Feb. 11, 2020: “My motto for the year is ‘leave no vacancy behind,'” McConnell told conservative radio talk show host Hugh Hewitt.
Sept. 18, 2020: With the death of Supreme Court Justice Ruth Bader Ginsburg, McConnell said, “President Trump’s nominee will receive a vote on the floor of the United States Senate.
“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,” he added. “Once again, we will keep our promise.”
July 27, 2007: A year and a half before the end of George W. Bush’s term, Schumer tells the American Constitution Society that the White House should not presume a nominee would be confirmed if a vacancy were to come up.
“For the rest of this President’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice (John Paul) Stevens replaced by another (Chief Justice John) Roberts; or Justice (Ruth Bader) Ginsburg by another (Justice Samuel) Alito.
“Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.”
Feb. 16, 2016: Schumer explains his 2007 statement on approving nominees was related to nominees who present themselves as in the mainstream and then pull the court in a partisan direction. “It’s clear these justices have done exactly what they said they wouldn’t do: create an activist court.” He said the speech wasn’t to a reason to not vote on a nominee in an election year.
June 27, 2018: With the retirement of Justice Anthony Kennedy, Schumer recalled McConnell’s 2016 refrain. “Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court nominee in an election year. Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the president’s right to nominate.”
Sept. 18, 2020: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, the vacancy should not be filled until we have a new president,” Schumer tweeted upon Ginsburg’s death.
Feb. 13, 2016: At the 2016 presidential debate in Greenville, S.C., Sen. Lindsey Graham, R-S.C., said of candidates at the time: “Everybody up there I would have confidence would pick a reliable conservative except for Donald Trump because I don’t think he’s a conservative.” He went on to say he would consider a qualified Supreme Court nominee from whoever the president elected in 2016 might be.
Feb. 23, 2016: Graham joins Republicans on the Senate Judiciary Committee in telling McConnell in a letter, “Given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy.”
It goes on, “the American people are presented with an exceedingly rare opportunity to decide, in a very real and concrete way, the direction the Court will take over the next generation. We believe The People should have this opportunity.”
Oct. 3, 2018: Graham, at The Atlantic Festival, says, “In 2016, the primary process is ongoing. If you look back at 100 years, no one has been replaced under that circumstance. If you listen to what Joe Biden said, you should hold it over to the next election. Joe is right a lot. … I will tell you this. If an opening comes in the last year of President Trump’s term in the primary process is started, we will wait to the next election.”
He has not made a public comment since Ginsburg’s death beyond offering his condolences.
Sen. Rob Portman, R-Ohio, in 2016:
“During a very partisan year and a presidential election year, that both for the sake of the court and the integrity of the court and the legitimacy of the candidate, it’s better to have this occur after we’re passed this presidential election.”
Sen. Ron Johnson, R-Wisc., in 2016:
“Let the American people have a voice in the composition of the Supreme Court. Instead of a lame duck president and Senate nominating and confirming, a new president and Senate – elected by the people only a few months from now – should make that important decision. … In the politicized atmosphere of an election year, you probably shouldn’t even nominate someone. … It’s not fair to the nominee, it’s not fair to the court.”
Sen. Mike Lee, R-Utah, member of Judiciary Committee, in 2016:
“In light of the contentious presidential election already well underway, my colleagues and I on the Judiciary Committee have already given our advice and consent on this issue: we will not have any hearings or votes on President Obama’s pick. Any meeting with any nominee put forward by President Obama would only be a waste of the Senate’s time. The court has very ably dealt with temporary absences in the past and will do so again now.”
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