CBS News’ John Dickerson peppered Senate Majority Leader Mitch McConnell on Sunday’s “Face the Nation” over the senator’s decision not to consider Obama Supreme Court nominee Merrick Garland and made a false claim, twice, about precedent concerning presidential election year appointments.
“In the history of partisanship on the Supreme Court, your decision to block Merrick Garland (in 2016) is something (Democrats) see as having kicked off a new stage in the partisanship associated with the Supreme Court nominees,” Dickerson said.
If it was supposed to be a baited question, McConnell didn’t take it.
“Yeah, they don’t know much history,” McConnell replied. “You have to go all the way back to 1880 to find the last time a Senate controlled by a different party from the president confirmed a Supreme Court justice to a vacancy created in the middle of a presidential election.”
The Kentucky Republican continued: “They’ve also conveniently forgotten that Joe Biden said in 1992, when he was chairman of the Judiciary Committee, the Democrats control the Senate, Republican in the White House. If a vacancy occurred they wouldn’t fill it.
“They also conveniently forgot that Chuck Schumer and Harry Reid, 18 months before the end of Bush 43, said if a Supreme Court vacancy occurred they wouldn’t fill it,” McConnell said.
Testy exchange on @FaceTheNation as John Dickerson presses Mitch McConnell on his decision to block Merrick Garland's Supreme Court nomination in 2016 https://t.co/JXaP0vniZk pic.twitter.com/aChYVkAuCr
— CBS News (@CBSNews) October 7, 2018
Dickerson interjected saying, “I don’t think that’s right.”
“In 1956, Eisenhower nominated (William) Brennan, the 84th Congress was a Democrat-controlled. And also on the Biden rule, Joe Biden was talking in the abstract,” Dickerson said. “There was no nominee, no nominee was blocked and he said to not have the nomination come up before the election, but that it could come up after the election.”
The anchor further suggested that McConnell’s action “hurts democracy.”
McConnell fired back, arguing that Dickerson had his history wrong, and the 1880 statistic he gave was accurate.
Dickerson once again cited the 1956 Brennan example, and then pointed to 1968 when then-President Lyndon Johnson nominated associate Justice Abe Fortas to be chief justice. Fortas failed to gain enough support to end debate for his nomination, and Johnson’s successor, Richard Nixon, ultimately filled the position with Warren Burger months after winning the presidency.
In his 1992 Senate speech, Biden offered the Fortas example as a reason not to consider nominations during the height of a presidential campaign.
In response to Dickerson’s bickering, McConnell noted that Johnson’s attempted appointment of Fortas came while the Democrats controlled both the Senate and the White House, therefore was not the same as the Garland nomination.
“The history is exactly as I told you,” McConnell said, standing firm on his 1880 stat.
Dickerson replied, “Well, we have a disagreement about the history.”
Later in the day, the newsman conceded that McConnell was correct about Brennan.
Dickerson tweeted, “The @senatemajldr &I had a disagreement about 1956. He said, since 1880, no SCOTUS nominee had been named & confirmed in an election year when the president and Congress were in opposite parties. I said in 1956 Ike (R) nominated Brennan. Democrats controlled the Senate.”
But Brennan was a recess apointment in ‘56 not confirmed by Democrats ‘till ‘57. McConnell: correct! But: recess appointment & confirmations in election years undermine idea it was Sen. norm justices coldn’t be confirmed b/c voters had to have their say— the Garland rationale.
— John Dickerson (@jdickerson) October 7, 2018
The difference is that Brennan was first named to the court as a recess appointment on Sept. 29, 1956, according to The Washington Post. He was not confirmed by the Senate until 1957, after voters had a chance to elect a new president in November 1956. They did not, and Eisenhower remained in the White House.
“But Brennan was a recess appointment (by Eisenhower) ‘56 not confirmed by Democrats ‘till ‘57,” Dickerson wrote. “McConnell: correct! But: recess appointment & confirmations in election years undermine idea it was Sen. norm justices coldn’t (sic) be confirmed b/c voters had to have their say— the Garland rationale.”
A recess appointment is only temporary, lasting generally until the beginning of the next session of Congress.
If Democratic candidate Adlai Stevenson had defeated Eisenhower in ’56, he would have been able to choose whomever he wanted to fill the Supreme Court seat Brennan temporarily held.
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