Manchin: If there's another SCOTUS vacancy close to the midterms, I won't allow it to be filled

AP Photo/J. Scott Applewhite

I spent an entertaining 20 minutes on social media this afternoon watching liberals have conniptions in response to this comment.

He infuriated them by tanking Build Back Better. He made mortal enemies of them by refusing to change the filibuster to pass voting-rights legislation.


If he denied them a Supreme Court seat — particularly an opportunity to replace a conservative on the Court — I think they’d sink his house boat.

What does Manchin mean when he says he doesn’t want to be hypocritical? Well, despite his habit of supporting Republican SCOTUS nominees, he voted no on Amy Coney Barrett in 2020. The reason? Timing:

“Today the Senate took unprecedented action never before seen in the 240 year history of our country, but it didn’t have to be this way. Mitch McConnell and Senate Republicans chose a dangerous, partisan path to push through the confirmation of Judge Amy Coney Barrett eight days before this year’s November 3rd election further politicizing the highest court in the land. The facts are clear—never before has the president nominated and the Senate confirmed a Supreme Court justice between July and Election Day in a presidential election year.

“This degradation of Senate norms and procedures didn’t start with the confirmation of Judge Amy Coney Barrett and it won’t end here. The U.S. Senate is supposed to be the greatest deliberative body in the world and perhaps we used to be. But each time a Senate majority – regardless of party – changes the rules, we reduce the incentive to work together across party lines. Instead, the partisan governing of the last ten years and the rushed nomination of Judge Barrett only fans the flames of division at a time when Americans are deeply divided. Judge Barrett’s nomination and the confirmation process are far from business as usual. I cannot support the nomination of Judge Barrett to the Supreme Court of the United States on the eve of a Presidential election. It is simple – this nomination should have waited until after the election.”


It may be true that no justices have been confirmed after July in a presidential election year. (I’ll take Manchin’s word for it.) But there have been justices confirmed after July in a midterm election year. Why, Brett Kavanaugh was confirmed in October 2018.

And among the senators who voted for Kavanaugh was … Joe Manchin.

“The Manchin Rule: In the interests of preserving bipartisan norms, only one party is permitted to appoint SCOTUS justices right before elections,” tweeted annoyed Democrat Greg Sargent. Dave Weigel blames Democrats themselves for misplaying the Kavanaugh confirmation, painting themselves into a strategic corner in case a second vacancy does open on the Court later this year:

I confess, I don’t understand Manchin’s logic in opposing Barrett’s confirmation in October of a presidential election year but supporting Kavanaugh’s confirmation in October of a midterm election year. Each election held consequences for how each seat would eventually be filled, after all. The 2018 midterms determined which party controlled a majority of the chamber charged with giving its advice and consent to the president on his nominee. If Manchin believes a vacancy close to an election should be left unfilled so that voters can have their say about which party should fill it, that logic applies to Senate races in midterms too.


In fact, Manchin’s position is almost the opposite of Mitch McConnell’s position on Merrick Garland and Barrett. McConnell’s view is that, in a presidential election year, a seat should be held open if the presidency and the Senate are controlled by different parties. Let the people break that stalemate at the polls. That’s how Garland’s blockade was justified. Whereas when the presidency and the Senate are held by the same party, there’s no stalemate and therefore no need to consult the electorate. That’s how Barrett’s nomination was rammed through.

The presidency and Senate do happen to be controlled by the same party at the moment, just as they were in 2018 when Kavanaugh was confirmed in October. Yet, despite the lack of a stalemate, Manchin apparently wants to defer to the voters anyway. Huh.

The silver lining for angry Dems: Nothing but nothing would wake liberal voters from their stupor and get them motivated to vote this fall like a Supreme Court seat hinging on the outcome of Senate elections. If Republicans win and McConnell returns to the majority, that seat would probably be held open until 2025. If Democrats win and Schumer remains in control, Democrats get to put a second justice on the Court.

Lefties have very few reasons to turn out in November. That would be a big one. The libs should be thanking Manchin!

Here’s what I *think* would happen if a vacancy opened in early October, though. Manchin would go to McConnell and tell him that he’s prepared to hold the seat open if McConnell promises him a floor vote on Biden’s nominee in the new Republican-controlled Senate. No more Merrick Garland situations where the nominee isn’t even considered. 2023 isn’t an election year of any sort, after all; we can’t have a precedent in which presidents from one party can never get a vote on their SCOTUS nominees when the Senate is controlled by the other party, regardless of when the vacancy opens. I think if McConnell made him that promise — a floor vote will be held in 2023 — Manchin might agree to hold open the seat, believing that he could convince Collins, Murkowski, Graham, and maybe one or two others to vote yes in the spirit of bipartisanship.


If McConnell refused to make that promise, Manchin could then turn around and say, “Fine, then let’s fill the vacancy before the election or in the lame-duck session. To hell with the obstructionist Republicans.”

The ironclad rule of American politics in 2022 is “Joe Manchin holds all the cards.” What choice would McConnell have realistically except to agree to whatever conditions he sets?

Update: Ah, well then!

I … still don’t see why his reasoning is different for presidential elections versus midterms. If he wants the people to have a say when a vacancy opens shortly before an election of any sort, hold the seat open.

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