Once Senate Majority Leader Mitch McConnell announced that the Senate would consider any nominee put forth for Ruth Bader Ginsburg’s now-vacant Supreme Court seat, the battle was on.
Late Friday, shortly after news of Ginsburg’s death became public, McConnell offered his condolences and said that the conditions that led Senate Republicans to not consider Obama nominee Merrick Garland didn’t apply in 2020.
“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,” McConnell said in a statement.
“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 re-elected 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,” the statement continued.
“President Trump’s nominee will receive a vote on the floor of the United States Senate.”
The Senate and the nation mourn the passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.
My full statement: pic.twitter.com/NOwYLhDxIk
— Leader McConnell (@senatemajldr) September 19, 2020
Ginsburg didn’t want this, stating before she died that her “most fervent wish is that I will not be replaced until a new president is installed.”
It wasn’t just Ginsburg’s wish.
Hillary Clinton called McConnell’s decision a “hypocrisy” and said that Democrats should “make it painful” for Republicans to confirm a justice prior to the election.
“The Democrats who are in the Senate will have to use every single possible maneuver that is available to them to make it clear that they are not going to permit Mitch McConnell to enact the greatest travesty, the monument to hypocrisy that would arise from him attempting to fill this position,” Clinton told MSNBC’s Rachel Maddow, according to Fox News.
She added that McConnell was “truly wreaking havoc on our Senate and on our norms, our values and, I would argue, on the underlying original intent of the Constitution and the Founders.”
This was — you shouldn’t be surprised to know — different from her position in 2016. Back then, after the death of Scalia, she not only said that Senate Republicans had the obligation to consider a nomination from the Obama administration, they had the obligation to confirm someone as soon as possible.
Statement on the passing of Supreme Court Justice Antonin Scalia: pic.twitter.com/xazj9dDd5c
— Hillary Clinton (@HillaryClinton) February 14, 2016
“The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution,” Clinton, then the front-runner for the Democratic presidential nomination, wrote in a statement.
“The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons.”
Again, the wording here is the significant thing. Not only must the Senate consider a nomination, it has to confirm someone to the position — even though the only individual who could nominate a Supreme Court justice before Barack Obama’s term was over was Barack Obama.
As McConnell noted in his statement Friday, the American people had elected a Republican Senate to be a check on a Democratic White House — something that didn’t matter to Clinton, evidently.
Meanwhile, on Friday, Clinton said that the “underlying original intent of the Constitution and the Founders” was to leave seats vacant before an election even though the president’s party controls the Senate at the moment.
That both of Clinton’s positions may be at odds with the norms in both situations may not matter to her, and yet she claims the hypocrite was Mitch McConnell.
Hillary Clinton isn’t in a position of power or serious influence in 2020, but Joe Biden is, considering he’s running to be in the position to make the decision of who, to nominate if a new justice isn’t put on the court by President Trump and the Republican Senate.
“Tonight and in the coming days, we should focus on the loss of the justice, and her enduring legacy,” Biden said Friday after returning from a campaign event, according to CNN. “But there is no doubt, let me be clear, that the voters should pick the president, and the president should pick the justice for the Senate to consider.”
And cue 2016: “It’s a plain abdication of the Senate’s solemn constitutional duty,” Biden said in March of 2016, according to The New York Times.
“Every nominee, including Justice Kennedy — in an election year — got an up-or-down vote by the Senate,” he added — referencing Justice Anthony Kennedy, who was confirmed by a Democratic Senate in February of 1988, even though he was nominated by Ronald Reagan in 1987. “Not much of the time. Not most of the time. Every single time.”
However, as McConnell pointed out, no nominee by a president whose party didn’t control the Senate that was made in an election year — as opposed to Kennedy, who was nominated in 1987 — had been confirmed since Grover Cleveland’s nomination of Melville Fuller to chief justice in 1888.
And then there was Senate Minority Leader Charles Schumer of New York, who tried to use McConnell’s own words against him:
The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.
— Chuck Schumer (@SenSchumer) September 18, 2020
“The American people should have a voice in the selection of their next Supreme Court Justice,” Schumer put in a Twiitter post. “Therefore, this vacancy should not be filled until we have a new president.
Those were McConnell’s words from 2016, decontextualized from any nuance. Schumer has also threatened court-packing and filibuster-breaking, if the Republicans even consider a nomination.
“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Schumer said, according to Axios. “Nothing is off the table.”
Meanwhile, here’s what Schumer himself was saying back in 2016:
— Chuck Schumer (@SenSchumer) February 23, 2016
Again, what’s ironic is that McConnell is being painted as the hypocrite here, even though earlier events are on his side. The precedent was against a nomination being confirmed in 2016. In 2020, precedent supports confirmation.
In 2016, Democrats have dealt with the issue by pretending the relevant precedents didn’t exist. Now, they’re pretending the standard they set back in 2016 doesn’t exist, either.
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