McConnell’s Position Has Shifted on Considering Supreme Court Nominees in Election Years

“What I did was entirely consistent with what the history of the Senate’s been in that situation going back to 1880.”

This is misleading.

After the death of Justice Antonin Scalia in February 2016, President Barack Obama nominated Judge Merrick Garland, who sits on the U.S. Court of Appeals for the District of Columbia Circuit, to fill the vacant Supreme Court seat. At the time, McConnell cited a nonexistent tradition to insist that the Senate should not consider a nominee in a presidential election year.

On Sunday, a day after the Senate confirmed Justice Brett Kavanaugh to the Supreme Court, McConnell was asked whether he would follow the tradition he cited in 2016. He responded, “We’ll see.”

Democrats have embellished McConnell’s remarks from 2016. But McConnell himself is now selectively omitting parts of them, and focusing on a different, misleading rationale to justify his actions two years ago.

In an earlier interview with Wallace, in March 2016, McConnell argued that the Senate should refrain from considering nominees both in a presidential election year andwhen different parties control the White House and the Senate.

“You have to go back to 1888 when Grover Cleveland was in the White House to find the last time when a vacancy was created in a presidential year, a Senate controlled by the party opposite the president confirmed,” McConnell said then. “All we’re doing, Chris, is following a long-standing tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.”

But it is clear from statements, news conferences, interviews and speeches that McConnell’s chief argument in refusing to consider Garland in 2016 was that voters should have a say in the selection of a Supreme Court nominee.

Sometimes, though certainly not always, McConnell has added that a divided government has not filled a vacancy in a presidential election year in more than a century.

McConnell is not being precise in citing a “tradition” of the Senate not confirming a Supreme Court nominee in a presidential election year. That has occurred only once in the past century: In 1968, President Lyndon B. Johnson, a Democrat, nominated Associate Justice Abe Fortas to replace Earl Warren as chief justice. The Senate, which at the time was controlled by Democrats, did consider Fortas for the position, but his nomination was withdrawn.

It also stretches credulity to accept McConnell’s argument that his actions were “entirely consistent” with Senate protocol. While it is true that a divided government very rarely confirms a nominee in a presidential election year, that is the case because the opportunity to do so is very rare.

Since the beginning of the 20th century, a vacancy on the Supreme Court in a presidential election year occurred only six times before 2016: in 1968, 1956, 1940, 1932, 1916 and 1912.

In four of those years, the president’s party also controlled the Senate, which successfully confirmed the nominee. In 1956, President Dwight D. Eisenhower, a Republican, elevated Justice William J. Brennan Jr., a Democrat, by a recess appointment. Brennan was confirmed a year later by a Democratic-controlled Senate.

Previously, a Republican-led Senate confirmed the nominee of President Grover Cleveland, a Democrat, in 1888. But a Democratic Senate did not consider the nominee of President Millard Fillmore, of the Whig Party, in 1852.

It also is worth noting that majority-party senators do not always deliver confirmations for same-party presidents. In the 1844 election year, President John Tyler of the Whig Party unsuccessfully made seven nominations of three candidates to fill two Supreme Court vacancies. The Whig-controlled Senate rejected them all.