Pay verrrrrry close attention to the beginning of the clip below. Chuck Schumer argued yesterday that if McConnell wanted voters to decide which presidential candidate should fill the Scalia vacancy in 2016, he should also want voters to decide which party should advise-and-consent to the president’s choice to fill the Kennedy vacancy in 2018. There are two parts to a SCOTUS nomination, after all, nomination and confirmation. Let the voters decide the latter too!
No way, said Republicans. From day one in 2016, McConnell said that a vacancy should be held open only in a presidential election year. Midterms don’t count!
But is that what Cocaine Mitch says here, that the rule only applies in presidential election years? No, he does not. What he says, almost in passing, is that the Scalia vacancy happened in a presidential election year at the end of a two-term lame-duck presidency. Meaning, if Breyer or Ginsburg should happen to throw in the towel and retire in 2020, all bets are off on whether that vacancy will be held open through the election. I’ve got a crazy feeling it won’t be!
Watch, then read on:
WATCH: Majority Leader McConnell on US Supreme Court vacancy:
"This is not 2016. There aren’t the final months of a second-term, constitutionally lame-duck presidency with a presidential election fast approaching. We're right in the middle of this president’s very first term." pic.twitter.com/U4vagXvQa2
— NBC News (@NBCNews) June 28, 2018
I can’t begin to imagine how he might explain why a vacancy at the end of a two-term presidency should be held open but one at the end of a first term shouldn’t be, but we may find out. In the meantime, note the precedents he cites to justify *not* holding open a vacancy in a midterm year. He mentions Kagan, who was confirmed in August 2010, just a few months before an election. It’s a good counter to Schumer, although as I noted yesterday, it’s not quite perfectly analogous. The minority in 2010, the GOP, had no hope of winning a Senate majority that fall, although it did of course have hopes of padding its minority and thereby strengthening its veto power over nominees by filibustering them. The minority in 2018, the Democrats, does have a real chance of winning a Senate majority this fall. To phrase that differently, Republicans were able to acquiesce in the Kagan confirmation process knowing there was no scenario in which they’d soon be positioned to give advice and consent on the nominee. Different ballgame for the Dems today.
But McConnell’s other precedent, the Breyer confirmation, is better. Breyer was confirmed at the end of July in 1994, just about three months before Republicans walloped Democrats in the midterms. Not only did they famously retake the House after 40 years in the minority, they retook the Senate by flipping a 57/43 Democratic advantage to a 52/48 Republican one the following year. Had Democrats held open the Breyer nomination for the midterms, Breyer might have been DOA in the new Republican-controlled chamber the following January. Might have been, I emphasize, but probably not: Breyer was confirmed with 87 votes in an age where SCOTUS nominations weren’t yet the death struggles that they are now. If Schumer’s desperate to argue that the Breyer precedent doesn’t apply, there’s his argument — in our new hyperpartisan age, when even eminently qualified judges are forever on the brink of being borked, it makes more sense to hold open nominations in election years to let the voters decide than it did years ago.
But that’s a hard argument to make. In practice it amounts to saying “our politics completely sucks now and our procedures should reflect that.” Good luck selling that one.