Fact check: Did Tillis flip-flop on Supreme Court appointments?
Posted October 27, 2020 4:49 p.m. EDT
Updated October 27, 2020 5:22 p.m. EDT
When it comes to appointing Supreme Court justices, Thom Tillis is one of many Republican senators accused of flip-flopping.
Tillis and 51 others voted Monday night to appoint Amy Coney Barrett to the U.S. Supreme Court. The seat opened after the death of Ruth Bader Ginsburg on Sept. 18.
Barrett’s appointment comes eight days before Election Day, and four years after the Senate refused to hold a vote for a judge nominated by President Barack Obama. In 2016, Obama nominated Merrick Garland to fill the vacancy left by the late Supreme Court Justice Antonin Scalia.
So has Tillis flip-flopped on the issue of confirming Supreme Court justices?
Let’s put his comments, then and now, through the Flip-O-Meter.
To be clear: the Flip-O-Meter doesn’t measure whether any change in position is good policy or good politics. It merely measures whether a politician has been consistent in his or her stated views.
Tillis isn’t the first Senator to have his position on Supreme Court appointments examined. PolitiFact found that Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer have each flip-flopped on the issue.
What Tillis said then
Tillis was one of several senators who claimed that, because it was an election year, the Senate should wait for Americans to vote in the election before moving forward with Obama’s nominee.
On Feb. 23, 2016, Tillis and 10 other Republicans on the Senate Judiciary Committee signed a letter to Senate Leader Mitch McConnell that explained their position. The first two lines say:
“As we write, we are in the midst of a great national debate over the course our country will take in the coming years. The Presidential election is well underway. Americans have already begun to cast their votes.”
They noted that it had been more than 80 years since the Senate confirmed a Supreme Court nominee in a presidential election year, and concluded by saying they intended to withhold a vote “to ensure the American people are not deprived of the opportunity to engage in a full and robust debate over the type of jurist they wish to decide some of the most critical issues of our time.”
Tillis reaffirmed this stance on multiple occasions. On the Senate floor on Feb. 26 of that year, Tillis started his speech this way:
“Our nation is in the midst of a presidential election in which the american people are currently deciding who will be their next commander-in-chief. In my home state of north carolina, many voters have already submitted their absentee ballots and early voting will begin soon.”
He then referred to Vice President Joe Biden’s hypothetical remarks from 28 years ago, old comments in saying the Senate shouldn’t confirm a nominee during an election year:
“Vice President Biden’s remarks may have been voiced in 1992, but they are entirely applicable in 2016. The campaign is already underway. It is essential to the institution of the Senate and to the very health of the republic not to launch our nation into a partisan divisive confirmation ballot during the same time the American people are casting ballots to elect our next president. Vice President Biden -- and this is not something I’ve said very often -- Vice President Biden was absolutely right.”
In a statement a couple weeks later, Tillis reiterated his position and emphasized that the country is “in the middle of a presidential election.”
He made similar remarks that March at a speech at the Conservative Political Action Conference and in an op-ed for USA Today that August, when he said: “Voters — not a lame-duck president — should decide the composition of the highest court in the land.”
Tillis reaffirmed his position even after Trump was elected. Asked by an MSNBC News host in March 2017 if he regretted how he treated Garland’s nomination, Tillis said no.
“No I don’t. I think that we were at a point in time in the election cycle where we were already past primaries on the Republican side and it’s a principle that I embraced as a new member of the Senate that I will consistently uphold regardless of whether the tables are turned.
I think we were in a situation where it would have been hyper politicized. It would've become a circus here and I think that was a good reason to wait to hear the vote of the people.”
What Tillis says now
We reached out to the Tillis campaign and asked if Tillis has changed his position from 2016.
Tillis spokesman Andrew Romeo argued that the Senator has been consistent. He said there are two key differences between 2016 and 2020, which Tillis noted in his statement after Justice Ruth Bader Ginsburg’s death:
- Garland's nomination came during a "divided government," meaning the White House was controlled by Democrats and the Senate was controlled by Republicans.
- Garland's nomination came while President Obama was a "lame-duck," meaning he couldn’t be reelected the following year.
Those differences, however, have not been consistently cited by Tillis when he explained his 2016 position.
While a divided government was mentioned in the letter Tillis and the other Republicans sent to McConnell, he didn’t cite it as a primary reason in his subsequent speech on the Senate floor, the USA Today op-ed or even his MSNBC interview in 2017. Furthermore, PolitiFact has previously found this particular argument to be a weak one.
The argument that Obama was an outgoing president and Trump could serve another term is flawed, since it’s possible that Trump also won’t serve another term.
And the excuses don’t erase the simple fact that Tillis said one thing in 2016 and did something dramatically different this year.
Tillis in 2016 argued that the Senate shouldn’t confirm a Supreme Court nominee during an election year, and he repeatedly noted that voting was already underway.
To argue that Tillis has been consistent on this issue, the campaign cherry-picks his comments from four years ago to obscure the senator’s lead argument -- which was that voting had already started and voters deserved a voice in the appointment.
In 2016, Tillis made his argument during the presidential primaries. In 2020, he ignored that argument even though the General Election had already started in North Carolina when Ginsburg died. (Ginsburg died on Sept. 18, and the North Carolina State Board of Elections had already started mailing absentee ballots to people on Sept. 4)
Tillis completely changed his position on whether voters should have a say in Supreme Court vacancies that occur during an election year. He’s done a`Full Flop.