Democrats Cite McConnell’s Precedent to Delay Supreme Court Hearings. But Does It Apply?

Sen. Richard J. Durbin, D-Ill.: “With so much at stake for the people of our country, the U.S. Senate must be consistent and consider the President’s #SCOTUS nominee once the new Congress is seated in January.”

Sen. Chuck Schumer, D-N.Y.: “@SenateGOP colleagues should follow the rule they set in 2016 not to consider a SCOTUS nominee in an election year. Sen McConnell would tell anyone who listened that the Senate had the right to advise & consent, & that was every bit as important as POTUS’ right to nominate.”

Justice Anthony M. Kennedy, a frequent swing vote on the Supreme Court, announced Wednesday that he would retire this summer. Within hours, Democrats declared that the Senate should not consider his replacement until after the November midterm elections, citing what they called a precedent that Sen. Mitch McConnell, R-Ky., the majority leader, set two years ago.

In February 2016, the sudden death of conservative Justice Antonin Scalia created a vacancy on the nation’s highest court. President Barack Obama nominated Merrick B. Garland, a centrist judge, to fill it. But McConnell insisted that the Senate should not consider the nomination during a presidential election — and that the next president, not Obama, should pick Scalia’s replacement.

That spring, McConnell repeatedly cited a nonexistent Senate “tradition” of not considering Supreme Court nominees during a president’s last year in office.

“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,” McConnell said in a statement released the night Scalia died.

“All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year,” he said in a March 2016 interview with Fox News Sunday.

McConnell’s claim then of keeping to tradition was incorrect, given that the Senate has rejected a Supreme Court nominee one other time in an outgoing president’s final months in modern history. And Democrats have a point in noting now that the crux of McConnell’s argument — to give voters a say in the process — could also apply to the midterm elections since senators must confirm Supreme Court nominations.

Still, it is clear from statements, news conferences, interviews and in speeches on the Senate floor, McConnell consistently and specifically said that “the presidential election process” — and not “a lame-duck president” — should decide the next Supreme Court justice.

He did not explicitly set a precedent for refusing to consider court nominees in all election years, as Democrats say now.