WASHINGTON (CN) – Entering a new election year after his refusal to consider Supreme Court nominees ensured a Republican majority, Senate Majority Leader Mitch McConnell said Tuesday he would not obstruct any candidate for the court in 2020.
Though the Kentucky Republican denies that this stance betrays his earlier position, it was McConnell in 2016 who refused to hold a Senate confirmation hearing on Merrick Garland, the D.C. Circuit judge nominated by then-President Barack Obama to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia.
McConnell had said at the time that it would be unfair to make a Supreme Court selection during an election year, but his tune changed Tuesday at a luncheon with the Chamber of Commerce in his home state.
When asked what he would do if a Supreme Court justice were to die or retire in the next year, creating an opening on the bench, McConnell quipped with a smile: “Oh, we’d fill it.”
The position quickly sparked outrage across the aisle and from with Caroline Frederickson, president of the American Constitutional Society.
“Senator McConnell’s rule about not confirming Supreme Court nominees in an election year was never an exercise in letting the American people have a say in the makeup of the court; it was always a cynical political gambit,” Frederickson said in a statement Wednesday. “We knew it then and we know it now. The only thing his remarks of the last 24 hours do is reconfirm McConnell as one of the more nakedly partisan and shameless political figures ever to grace the halls of Congress.”
David Popp, McConnell’s spokesman, brushed off the barbs on Twitter Wednesday morning, calling McConnell “consistent” in his remarks.
“McConnell has conveyed this reasoning several times – the decision not to consider Garland’s nomination was because the Senate was held by a different party than the president leading into an election,” Popp tweeted.
McConnell himself underscored the strategy of his position meanwhile in his remarks at Tuesday’s luncheon, saying the GOP must start with judgeships to ensure a “long-lasting positive impact.”
“What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of a judge is to follow the law,” McConnell said. “That’s the most important thing we’ve done in the country which cannot be undone.”
Historically, McConnell has leaned on nonlegally binding rules to waylay nominees when it is politically convenient.
To block President Obama’s circuit court nominations in 2012, the senator hearkened back to President Lyndon B. Johnson’s only full term in office before he was succeeded by President Richard Nixon.
In 1968, the same year that Johnson’s disappointing finish in the New Hampshire primary ended his bid for renomination, Republican Senator Strom Thurmond of North Carolina blocked Johnson’s attempt to elevate Supreme Court Justice Abe Fortas as chief justice.
While not legally binding, McConnell framed the precedent as the “Thurmond rule” in 2012. He deployed a similar gambit four years later, citing the “Biden rule” as his reason to block Garland’s nomination.
A former vice president and contender today for the Democratic nomination, Joe Biden had been a Delaware senator in 1992 when he remarked from the Senate floor that “unusual rancor” and “overall bitterness” surrounding the nomination of Justice Clarence Thomas to the high court had too deeply infected Congress’ ability to nominate a justice with clear intent.
“Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all,” Biden said at the time. “Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.”
McConnell tried to clarify his position this past October in an appearance on the CBS program “Face the Nation,” asserting that the tradition of Republican senators blocking the Supreme Court appointees of Democratic presidents dates back to the 1880s.
Ryan Owens, a professor of political science at the University of Wisconsin-Madison, said in an interview that McConnell’s latest remarks could have some critical subtext.
“I suspect McConnell’s statement may be an indirect way to nudge one of the conservative justices to consider retiring,” Owens said. “He could be signaling to Clarence Thomas, ‘maybe you should leave and make way for a younger person to come on the court before it’s too late.’”
Thomas is 70, making him the third oldest justice on the bench after Justices Ruth Bader Ginsburg and Stephen Breyer.
“He still has a decent amount of time left from his perspective,” Owens said. “He may finally have the court he has been waiting for, for all of his career and he’s going to want to kick the wheels off this and see how the court operates.”
Since none of the more liberal justices are likely to retire voluntarily, he added, and Thomas may not arrive at a decision to retire without a bit of coaxing, McConnell’s more recent remarks may be less about obstruction for now and more about playing a strategic long game of politicking on Capitol Hill.
“It could be he’s saying: make this your last term,” Owens said. “Remember, McConnell’s up for re-election next year and that, too, is playing into this.”
Among Democrats to push back against McConnell’s remarks Tuesday, Senate Minority Leader Chuck Schumer tweeted that McConnell is “a hypocrite” who “lives for GOP judges because he knows the GOP agenda is so radical and unpopular, they can only achieve it in the courts.”