Sanders Flip-Flops on Supreme Court Vacancy Multiple Times in One Day

Sen. Bernie Sanders / Getty Images
June 28, 2018

Sen. Bernie Sanders (I., Vt.) appeared fuzzy Wednesday on where he stood on the potential confirmation of a Supreme Court nominee from President Donald Trump, contradicting himself over issues surrounding the vacancy caused by Justice Anthony Kennedy's impending resignation.

Shortly after Kennedy announced his intentions, rumors began to swirl that Republicans in Congress would confirm a replacement before the November midterm elections. Sanders took to social media to make it known he opposed seating a new justice before "American people" have the chance to make "their voices heard at the ballot box."

The self-described Democratic socialist cited arguments Majority Leader Mitch McConnell (R., Ky.) made in 2016 when refusing to hold hearings on President Barack Obama's nomination of U.S. appellate court judge Merrick Garland to replace the late Antonin Scalia. At the time, McConnell asserted that since the vacancy occurred in the midst of a presidential election, Congress had a duty to refrain from voting on the nomination until the American people had their "say" on the issue.

"We should listen to what Sen. McConnell said in 2016," Sanders tweeted. "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."

Sanders' tweet seemed to directly contradict the stance he took on the Garland nomination.

In March 2016, Sanders released a statement in response to McConnell's refusal, in which he declared "refusing to hold hearings" on a Supreme Court nominee would be "unprecedented."

"Refusing to hold hearings on the president’s nominee would be unprecedented," Sanders said at the time.

The senator also implored his Republican colleagues to follow Obama's lead and do their jobs by holding confirmation hearings.

"President Obama has done his job. It’s time for Republicans to do theirs," Sanders said. "I call on Sen. Grassley to hold confirmation hearings immediately and for Leader McConnell to bring the nomination to [the] floor of the Senate if Judge Garland is approved by the Judiciary Committee."

It is unclear if the prospect of an emboldened conservative majority on the nation's highest court, likely the first since the New Deal era, triggered Sanders's apparent reversal.

Kennedy, who joined the Court in 1988, has long been recognized as the Supreme Court's swing-vote, one that prevented either the court's conservative or liberal wings from becoming ascendant. His decision to retire under the Trump administration opens the door for a conservative to be his replacement, likely altering the institution's ideological makeup, at least for the time being.

Sanders, however, seemed to contradict himself again late Wednesday evening during an appearance on MSNBC's "All in With Chris Hayes."

When asked by Hayes if he believed Democrats "should even consider the nominee" or if they should outright "pledge to vote no" immediately, Sanders expressed that it wouldn't be reasonable to vote no before knowing anything about Kennedy's potential replacement. The senator did add that he suspected the eventual nominee would be "another right-wing disaster."

"Well, I don’t think you vote no before you know who the nominee is," Sanders said. "I suspect the nominee will be just another right-wing disaster."

Sanders also added this Supreme Court vacancy presented an opportunity to "mobilize" the American people to stand up because human rights and "advances" would be at stake if a conservative was confirmed as Kennedy's successor.

"Our job is to mobilize the American people who overwhelmingly, among other things, do not believe that we should overturn Roe v. Wade, who believe that our gay brothers and sisters are entitled to be treated with dignity," the senator said. "All of those rights and all of the advances that we have made over the years are now increasingly in danger."