Democrats Do The Supreme Court Twist

Democrats who demanded vote on Garland want to delay vote on Kennedy replacement

• July 5, 2018 3:46 pm


Senate Democrats who demanded Republicans give a vote to Merrick Garland in 2016 are now insisting the "McConnell Rule" be followed by delaying a vote on President Donald Trump's Supreme Court nominee until after the midterms.

Democrats are still fuming over the refusal of Senate Republicans to hold a hearing and vote for Garland, President Barack Obama's selection following the death of Antonin Scalia in 2016. Senate Majority Leader Mitch McConnell (R., Ky.), citing then-Sen. Joe Biden (D., Del.) in 1992, said the American people should have a say in the selection of the next Supreme Court Justice, since it was a presidential election year.

The Washington Post called Democrats' charges of base hypocrisy "bogus," since McConnell made clear he was talking about a presidential election year.

Trump will make his second nomination to the Supreme Court in as many years following the retirement of Justice Anthony Kennedy, leading to liberal fears of a longtime conservative majority on the nation's highest court.

These lawmakers, who don't know the name of Trump's nominee yet, have changed their tune from two years ago in calling for a vote to be put off until after November.

Senate Minority Leader Chuck Schumer (D., N.Y.)

Speaking about Garland with CNN's Jake Tapper, Schumer said in 2016, "With such a qualified man, with the American people overwhelmingly of the view that there ought to be a hearing and a vote…If people vote no after that, so be it."

He also repeatedly tweeted about the effort.

"Our system of checks & balances requires 9 justices. Playing politics only weakens our democracy. ," he tweeted.

In a floor speech on June 27, however, Schumer said,  "This is the most important Supreme Court vacancy for this county in at least a generation. 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."

Sen. Amy Klobuchar (D., Minn.)

"Two-thirds of the American people favor going forward with a hearing here," Klobuchar said in 2016 on Bloomberg's short-lived "With All Due Respect." "I think they need to hear him out and let their constituents hear him out."

"#SCOTUS deadlocked decision on immigration is clear reminder that court can't function w 8 justices. Time for my colleagues to #DoYourJob," she tweeted on June 24, 2016.

She told MSNBC's Chris Hayes on June 27 that the Republicans had to be held to the "McConnell Rule" on Kennedy's replacement.

"I believe strongly that we've got to hold them to the McConnell rule and that is the rule that you don't have a vote on a Supreme Court justice during an election year," she said.

Sen. Dick Durbin (D., Ill.)

"To my friends on the Republican side of the aisle, do your job," Durbin said in a Senate floor speech in 2016. "Fill this vacancy."

He warned of a deadlocked Supreme Court justice that fall at a press conference.

"In a few weeks the Supreme Court will start its new term with eight justices.  We need nine. Major legal questions are hanging in limbo because the court is deadlocked on 4-4 votes," he said.

He too changed his mind in 2018, saying in a press release the Senate "must be consistent" and not consider Trump's nominee until a new justice was seated.

"Now we have the tables slightly turned, and the question to Mitch McConnell: Do you stand by the same reasoning? You said, ‘Let the American people speak in the upcoming election before we fill the vacancy,'" he said on MSNBC's "Morning Joe" on June 28. "Already, he's told us he's not going to be consistent at all on this."

Sen. Sheldon Whitehouse (D., R.I.)

"It's up to, I think, each senator to make up their mind whether they want to do their job, which is very clearly given to us by the Constitution, or duck and wait in the hopes that they'll have a Republican president who can appoint another passionate conservative activist," Whitehouse said of the Garland saga on MSNBC in 2016.

"In terms of giving the American people a chance to weigh in, if the Republicans were going to be consistent, they would have to follow the McConnell rule," he said June 28 on CNN.

Sen. Richard Blumenthal (D., Conn.)

Blumenthal called for Republicans to give Garland a hearing and vote in 2016, telling one interviewer Democrats would never resort to McConnell's kind of tactics and saying Republicans' position of "staunch, absolute resistance" to Garland was "unsustainable and untenable."

"Do you think it's fair that if there was a Republican who was president and this same process was going forward, that Democrats would be doing exactly what Mitch McConnell is doing now?" MSNBC's Chris Jansing asked on March 16, 2016.

"Absolutely not," Blumenthal said. "I wasn't there in 1992. That was a long time ago, but Democrats have wanted this process to work, and frankly, my greatest regret about this Republican resistance to any consideration is it drags the Court into the mire and muck of partisan paralysis and gridlock that the country and American people so detest about Washington today."

Fast-forward to 2018, and Blumenthal is enthusiastically calling for an embrace of the "McConnell Rule."

"The Amerian people really deserve a voice in this decision, and so the confirmation vote should take place after the election, after the new Congress is seated," he said June 28. on CNN.

Sen. Bernie Sanders (I., Vt.)

Sanders, who caucuses with the Democrats, said in the middle of his 2016 presidential campaign that while Garland was not as progressive a pick as he wanted, he would still do everything he could to see him confirmed.

"The President of the United States has the right to nominate someone to be a justice of the Supreme Court," he told MSNBC's Rachel Maddow. "[The] Senate’s function is to hold hearings and to vote. I think the Republicans will pay a very heavy political price if they continue to obstruct on this issue."

In a CNN interview with Anderson Cooper last week, he told McConnell to embrace his own precedent.

"Remember what you said when Obama was president," Sanders said. "Let the American people have a vote in November as to whether or not they want to overturn Roe vs. Wade, whether they want to allow discrimination against the gay and lesbian community."

He made his sentiments known in a statement as well.

"When President Obama nominated Merrick Garland, Republican leader Mitch McConnell said, ‘The American people should have a voice in the selection of their next Supreme Court Justice.' We should listen to what Sen. McConnell said. President Trump should not nominate, and the Senate should not confirm, a Supreme Court justice until the American people have had the opportunity to make their voices heard in November."

Sen. Cory Booker (D., N.J.)

Booker admonished Republicans in 2016 for not giving a vote to Garland, saying Obama had been elected to a four-year term, not a three-year one.

"The political posturing around Supreme Court justices is nothing new," he said on March 17, 2016. "Presidents are not elected for three-year terms and then in an election year,  some of their powers are taken away … He's done his job. It says the president shall nominate, but it also indicates that the Senate shall give advice and consent."

In 2018, Booker has both embraced the "McConnell Rule" argument and also said Trump should not nominate any justice because he is under investigation.

"We arrived in this moment because of a perversion of the Constitution and Senate rules – by Mitch McConnell literally stealing a President’s power to appoint a Supreme Court justice. He should apply his own standard to this vacancy and wait for the American people to have their say in the November election before bringing a nominee before the Senate," he said in a statement.

Sen. Dianne Feinstein (D., Calif.)

In an op-ed in 2016, Feinstein wrote refusal to consider Garland would "diminish the Senate in the eyes of the American people."

"I believe this distinguished record should send a message to every senator. We were sent to Washington to serve our constituents for six years. That includes considering nominees to the Supreme Court. Judge Garland’s long record of public service calls for fair consideration, open hearings and a vote. Refusal to do this would, in my judgment, only further diminish the Senate in the eyes of the American people," she wrote.

Feinstein flipped for 2018, saying with the election four months out, there should be no vote on a Trump nominee.

"4 months away from an election, there should be no consideration of a Supreme Court nominee until the American people have a say. Leader McConnell set that standard when he denied Judge Garland a hearing for nearly a year, and the Senate should follow the McConnell Standard now," she tweeted.

Sen. Bob Menendez (D., N.J.)

Menendez slammed Republicans for not doing their job and confirming a ninth justice following a deadlocked decision on immigration in 2016.

‘Today's unexpected decision only further reminds us why we must confirm a ninth Justice to the Court: The American people deserve a decisive answer, not a hung jury. It's time for Republicans in the U.S. Senate to do their job," he said in a statement.

Menendez then referred to the upcoming election in 2018 as reason to not vote on Trump's pick.

"We should NOT vote to confirm a lifetime appointment to the Supreme Court and change the country for decades when in just 131 days Americans will go to the polls to decide what direction they want the country to go in. A more reasoned debate would happen next year. ," he tweeted on June 28.