With the news that Supreme Court Justice Anthony Kennedy is set to retire at the end of July, Senate Majority Leader Mitch McConnell quickly announced that he planned to confirm Kennedy's replacement sometime in the fall.
Democrats and journalists immediately accused McConnell of hypocrisy. After all, McConnell refused to call up Obama's Supreme Court nominee Merrick Garland up for a vote in 2016 because it was an election year, right?
The American people should have a voice in the selection of their next Supreme Court Justice. #Kennedy pic.twitter.com/TAgp0yzPeX
— Tammy Duckworth (@SenDuckworth) June 27, 2018
JUST IN: Sen. Chuck Schumer: "Our Republican colleagues in the Senate should follow the rule they set in 2016: Not to consider a Supreme Court justice in an election year." https://t.co/mcq37ZJ3NU pic.twitter.com/8XinBnAB72
— ABC News (@ABC) June 27, 2018
Will be interesting to see how some GOP senators rationalize the idea that it’s suddenly now ok to debate an open SCOTUS seat in an election year. They may fully pull that hypocrisy muscle.
— Chuck Todd (@chucktodd) June 27, 2018
McConnell held a Supreme Court seat open for a year, insisting no Justice be confirmed in an election year without voters having a say. This was a terrible precedent but one he will need to live with. Dem Senators must insist — absolutely no confirmation until after the midterm.
— Adam Schiff (@RepAdamSchiff) June 27, 2018
McConnell blocked Garland during an election year https://t.co/hit54RvhAC
— Maggie Haberman (@maggieNYT) June 27, 2018
So surely, with 2018 being an election year, McConnell will follow the precedent he set and refuse to consider any nominees to replace Kennedy until the people have weighed in and the next Congress is seated.
Right?
— Ezra Klein (@ezraklein) June 27, 2018
Uh, no. I expect it's easy to misremember things that happened decades ago, but we're talking about an issue dating only to last election cycle.
McConnell's argument was that you shouldn't hold a vote during a presidential election year. Had Duckworth actually tweeted out a link to McConnell's tweet instead of just screenshotting it, her readers might have accidentally clicked and learned that she was misrepresenting his views. "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President," his actual statement read.
"The American people are in the middle of choosing who the next president is going to be. And that next president ought to have this appointment, which will affect the Supreme Court, for probably a quarter of a century," McConnell likewise said in March.
Don't take my word for it. Washington Post fact-checker Glenn Kessler ruled this morning that "the Republican position, whether you disagreed with it or not, clearly was based on the fact that it was a presidential election year."
"Bottom line: it’s pretty clear the debate in 2016 revolved around nominations made in a presidential election year," he concluded. "Democrats are simply spinning a false narrative."
McConnell's argument was theoretically based on a previous insistence from Democrats that Republican presidents not nominate a Supreme Court Justice if a vacancy arises during a presidential election year. Nicknamed "the Biden Rule," then-Senator Joe Biden made that case during the George H. W. Bush presidency.
"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. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself," Biden argued at the time.
Chuck Schumer went even further in 2007 and called for a filibuster of hypothetical justices appointed by George W. Bush, who still had over a year left in his presidency. "We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances," Schumer said.
I titled this blog post the way I did because I know I'm desperately clinging to a bygone era where these sorts of things mattered. Gone are the days of Ginsburg winning confirmation 96-3 or Scalia being confirmed unanimously. Judicial nominations have been hopelessly partisan for over a decade now, but even then there was thin excuses those partisans seized upon to justify not voting for obviously qualified candidates. Kagan was never a judge, Alito was part of some club in college, etc. etc.
Everyone knows that the "Biden Rule" was more or less a pretense for McConnell blocking an Obama nominee, but at least it was based on things Biden actually said. The "McConnell Rule" requires twisting McConnell's words and convenient amnesia on the part of Democrats. What's sadder than the dishonesty itself is that I suspect we've entered an age where everyone recognizes the dishonesty, but no one even cares.