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McConnell Argues Against Confirming New Justice This Year (If It Were 2016)

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Senate Majority Leader Mitch McConnell (R-KY) walks from a vote on Capitol Hill after the senate voted to advance a bill financing the U.S government Jan. 22, 2018 in Washington, DC. Brendan Smialowski—AFP/Getty Images

Majority Leader Mitch McConnell says the Senate should quickly confirm a Supreme Court nominee to fill the seat vacated by Justice Anthony Kennedy, who announced his retirement plans on Wednesday. But in 2016, McConnell sang an entirely different tune.

McConnell blocked consideration of President Obama’s nominee for Antonin Scalia’s seat, Merrick Garland, in March 2016 arguing that with a presidential election later in the year, the nomination should be made by the next president.

With Hillary Clinton and Donald Trump in tight contention, McConnell was hedging his bets. At the same time, the GOP had planned to block any nominations by Hillary Clinton, should Clinton have won the election, and McConnell’s argument wasn’t seen as having historical merit.

With the potential this fall for the House and Senate to switch to a majority of Democrats, McConnell is waving away any concerns about the public’s opinion at the polls. He’s already said he plans to push through the confirmation by this fall.

President Donald Trump, answering press questions during an appearance this morning with the president of Portugal, said he would try to fill the seat “as quickly as possible.”

In 2016, McConnell spoke regularly about why he wouldn’t advance Garland. “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” McConnell said in March 2016. “Give the people a voice in filling this vacancy.” In a tweet from his account on March 15, 2016, he wrote, “The next justice could dramatically change the direction of #SCOTUS for decades. The American people deserve a voice in that conversation.”

The majority leader leaned on the logic of what he labeled the “Biden Rule,” referring to a June 1992 statement by then-Senator (and later Vice President) Joe Biden, who was the head of the Senate Judiciary Committee at the time, a body that handles confirmation hearings for judges.

Biden proposed no such rule, and there was no vacancy when he gave a speech in June 1992, making a mild suggestion that George H.W. Bush agree to hold off nominating a justice until the outcome of the election was decided. He argued this would avoid a polarizing event just before party conventions happening in the summer. Biden said, “President Bush should consider following the practice of a majority of his predecessors and not—and not—name a nominee until after the November election is completed.”

Other Republicans in 2016 piled on. Senate Judiciary Chair Charles Grassley said, “A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.” But he also noted that the particulars of Obama’s choice was an issue: “The so-called empathy standard is not an appropriate basis for selecting a Supreme Court nominee.” McConnell also at times referred to Garland’s positions rather than the election-year principle.

Another member of the Senate Judiciary Committee, John Cornyn of Texas, said, “At this critical juncture in our nation’s history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the Supreme Court.”

Democratic Senators are currently trying to play McConnell’s 2016 statements to their advantage, though they have little leverage. The Senate Minority Whip, Dick Durbin, said in a statement, “Senator McConnell set the new standard by giving the American people their say in the upcoming election before Court vacancies are filled.” Dianne Feinstein, the highest-ranking Democrat on the Judiciary Committee, said, “There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in. Leader McConnell set that standard in 2016.”